Closed consultation

The Seafarers’ Wages Act 2023 draft regulations and guidance part 1: consultation document

Published 13 November 2023

Introduction

This is the first of two public consultations on the secondary legislation required to implement the Seafarers’ Wages Act 2023 (the act). The act makes provision in relation to the remuneration of seafarers who do not qualify for the UK National Minimum Wage (NMW). This first public consultation predominantly relates to the regulations covering procedural matters:

• declarations (timings, form, manner)
• administration of surcharges (notification, timings, publication)
• communication of refusal of access
• specification of the responsible harbour authority

This consultation seeks views on the draft regulations and associated guidance in respect of these matters.

This consultation opens on 13 November 2023 and closes on 11 December 2023.

A second consultation will launch in early 2024 and will cover draft regulations and associated guidance on the rate of a surcharge that harbour authorities will be required to impose on the operator of a service (surcharge tariff) if the operator does not provide a declaration, and detail on the equivalent rate to the NMW (NMWe).

Background to the legislation

The act is designed to boost the pay of seafarers who work tirelessly on international routes to maintain supply chains and transport passengers safely across our waters, but do not qualify for UK NMW, despite their having close ties to the UK by virtue of working on services that regularly call at UK ports.

The act is a key strand in the government’s response to P&O Ferries’ decision to dismiss 786 seafarers without consultation or notice in March 2022. The Secretary of State for Transport announced on 30 March 2022 the government’s nine-point-plan to boost and reform seafarer protections and welfare.

The act delivers on point one of the plan and is designed to protect those working on ships operating a regular international service to/from the UK from being paid less than an equivalent to the NMW while in the UK or its territorial waters.

The act applies to services which carry goods or people by ship between a place outside the UK and a place in the UK. The legislation requires harbour authorities to ask the operator of a service which enters a UK harbour 120 times or more in a year for a declaration. The declaration is that seafarers on the service who do not qualify for the UK NMW are being paid at least NMWe for their work (work in the UK or UK territorial waters).

Harbour authorities will be required to impose a surcharge on the operator of a service if the operator does not provide a declaration. If the surcharge is not paid, the harbour authority will be required to refuse access to the service.

The act received Royal Assent on 23 March 2023. However, it is necessary to make regulations (using powers in the act) setting out certain technical, procedural and administrative detail before the act can be made fully operational.

This consultation relates to draft regulations covering the procedural matters listed above. A second consultation will follow in due course on draft regulations concerning NMWe and the tariff of surcharges. The 2 sets of draft regulations will then be brought together in a single statutory instrument.

Development of these proposals

The government published a consultation which ran from 10 May 2022 to 7 June 2022 and sought views on the proposed legislation which eventually became the Act. The consultation sought views on the scope of services to which the new legislation should apply and the compliance processes. The government’s response to the consultation was published in July 2022.

Consultation feedback provided useful information and perspectives that helped refine our policy, and as a result the government introduced legislation to Parliament in July 2022. The Seafarers’ Wages Bill was introduced first in the House of Lords, moving to the House of Commons in November 2022. During the parliamentary process a number of amendments were made to improve the Bill including to make previously discretionary powers of harbour authorities to request declarations, impose surcharges and refuse access to harbours mandatory duties. The bill received Royal Assent on 23 March 2023.

In early 2023 we began to develop the draft regulations which are the subject of this consultation. Throughout the development of the bill and the draft regulations we have worked closely with industry stakeholders including the British Ports Association, UK Major Ports Group, UK Chamber of Shipping, Nautilus and the National Union of Rail, Maritime and Transport Workers, as well as operators. We are extremely grateful for the advice and assistance provided by these groups.

How to respond

The easiest way to respond is via the online questionnaire. You can find a link to the questionnaire in the Ways to respond section of the GOV.UK home page for this consultation.

If you can’t respond online, there is also a downloadable form plus an email and postal address.

When responding, please state whether you are responding as an individual or representing the views of an organisation. If responding on behalf of a larger organisation, please make it clear who the organisation represents and, where applicable, how the views of members were assembled.

Alongside this document, please read:

• draft regulations
• draft guidance (part 1)

For each of the following questions you are asked to state whether you agree, disagree, neither agree nor disagree or don’t know. Please also provide an explanation for your answer. Where you disagree, please explain what changes you think should be made.

You can also comment on whether:

• the draft regulations deliver the policy intent
• the draft guidance has any gaps
• the drafting causes any inconsistencies, gaps or overlaps with provisions elsewhere in the act or draft regulations
• the procedures outlined will be unworkable in practice or cause any significant issues

If you think the draft guidance is unclear, please provide feedback on how it could be clearer or what further information should be provided.

Subjects for consultation and associated questions

Declarations

Where a harbour authority has reasonable grounds to believe that ships providing a service in scope of the act will call at their harbour at least 120 times in a relevant year, section 3 of the act requires the authority to request that operators of services within the scope of the act provide them with a declaration that seafarers on the service, who do not qualify for the UK NMW, are being paid at least the NMWe for their UK work

Where a declaration is provided it must state either that there are no seafarers on the service who do not qualify for the UK NMW, or that any such seafarers are being paid at least NMWe for their work.

“Relevant year” under section 3(6) of the act means –

• the period of 12 months beginning with a date specified in regulations, and
• each successive period of 12 months

This duty to request an equivalence declaration is subject to any direction given by the Secretary of State not to make such a request. This would only happen by exception and in response to particular factual circumstances, for example if there were national resilience impacts, or a harbour authority requested a declaration from a service that is not in scope of the act. Otherwise, section 3 provides that a harbour authority that does not comply with the duty commits an offence and is liable on summary conviction in England and Wales to a fine, and in Scotland and Northern Ireland to a fine not exceeding level 5 on the standard scale.

Draft regulations regulations 5(1), 5(2) and 4 specify the following:

• the period within which a harbour authority must request a declaration – within 28 days of whichever is later of:
  • the harbour authority having reasonable grounds to believe that ships providing the service will enter or have entered at its harbour at least 120 times in a relevant year 
  • the 1 January before the relevant year to which the request relates (in which case the last day to request a declaration would be the 28 January)
• the period within which equivalence declarations are to be provided – within 3 months of the declaration being requested
• the manner in which equivalence declarations are to be provided – using the form specified in schedule 1 of the regulations and in the manner specified by the harbour authority

Chapter 3 of the draft guidance document provides case study examples to assist harbour authorities to understand when they are required to request a declaration from an operator of a service.

Overview

These questions are listed in this document so you can read them in context.

The easiest way to respond to the questions is via the online questionnaire. You can find a link to the questionnaire in the Ways to respond section of the GOV.UK home page for this consultation.

Question 1: Does the draft guidance assist in understanding what is meant by the following terms?

• harbour authority
• non-qualifying seafarer
• service operator

Period within which a harbour authority must request a declaration.

Question 2: Do you agree with what the draft regulations stipulate about the process for harbour authorities to request a declaration?

Question 3: To what extent do you agree with the period of 28 days for harbour authorities to request a declaration?

Question 4: To what extent do you agree that we have provided sufficient draft guidance on the process of requesting a declaration?

Period within which equivalence declarations are to be provided

Question 5: To what extent do you agree with the period of 3 months for operators to provide equivalence declarations to the harbour authority?

Manner in which equivalence declarations are to be provided

Question 6: To what extent do you agree with what the draft regulations stipulate about the manner in which declarations are to be provided?

Question 7: To what extent do you agree that we have provided sufficient draft guidance on providing a declaration?

Surcharges

The surcharge is an important element of the compliance process to incentivise the operators of in-scope services to pay seafarers NMWe in respect of their UK work. The act sets out the procedural requirements for when a harbour authority must impose a surcharge.

The harbour authority must impose a surcharge where: 

• an equivalence declaration has been requested but is not provided by an operator in the prescribed form and manner before the end of the prescribed period
• an equivalence declaration is requested by a harbour authority and the declaration only confirms that, in what remains of the relevant year, non-qualifying seafarers working on ships providing the service will be paid the NMWe, and does not confirm that the operator has been paying the NMWe in the period of the relevant year before the equivalence declaration was provided. In such circumstances the harbour authority must impose surcharges on the operator in respect of all the occasions that the service entered the harbour before the period covered by the equivalence declaration
• an operator provides an equivalence declaration, and they notify the harbour authority that at a specified time after the equivalence declaration was provided the service was, or started to be operated inconsistently with the equivalence declaration 
• the harbour authority has reasonable grounds to believe that after the declaration was provided, the service was, or started to be operated inconsistently with the declaration, or that the declaration is false or misleading in so far as it concerns the operation of the service before the declaration was provided

The surcharge is an important mechanism to deter operators from paying below NMWe and monies collected from a surcharge must only be spent on shore-based welfare facilities. Harbour authorities will not be able to profit. The rate of the surcharge will be set out in a tariff in regulations, and we will be consulting on this in the second consultation in early 2024. If the surcharge is not paid, the harbour authority must refuse access to that service.

The duty to impose a surcharge is subject to any direction given by the Secretary of State not to do so. Otherwise, section 9(3) provides that a harbour authority that does not comply with the duty to impose a surcharge is guilty of an offence and liable on summary conviction to a fine in England and Wales, or to a fine not exceeding level 5 on the standard scale in Scotland and Northern Ireland.

The draft regulations make provision for the following:

• the period within which harbour authorities must notify operators about the imposition of a surcharge – within 14 days beginning with the day on which the duty to impose the surcharge arises. This is intended to allow operators to bundle up a number of surcharges in a single surcharge notification
• the manner and form of the notification
• handing the surcharge notification to the master of a ship operating the service where an operator’s address cannot be ascertained after reasonable inquiry
• what must be included in a surcharge notification
• the period for payment of surcharges – 60 days beginning with the day after the day on which the surcharge notification was sent
• the notification of the imposition of surcharges to the Secretary of State – within 7 days beginning with the day on which the surcharge notification is sent to the operator
• publication by the Secretary of State of surcharges which have been imposed
• time limits for objections to surcharges

Chapter 4 of the draft guidance provides case study examples to illustrate the processes involved with surcharges and examples of how the surcharge timings work. The draft guidance also includes information such as how to send a copy of the surcharge notification to the Secretary of State, as well as where the Secretary of State will publish information about surcharges which have been imposed.

For each of the following questions please answer whether you agree, disagree, neither agree nor disagree, or don’t know. Please also provide an explanation for your answer. Where you disagree, please explain what changes you think should be made.

Notification of the imposition of a surcharge

Question 8: To what extent do you agree with the period of 14 days from the duty to impose a surcharge arising from harbour authorities to notify an operator about a surcharge?

Question 9: To what extent do you agree with what the draft regulations stipulate about the process for providing a surcharge notification and the contents of surcharge notifications?

Question 10: To what extent do you agree with the period of 7 days for harbour authorities to send a copy of the surcharge notification to the Secretary of State?

Question 11: To what extent do you agree that we have provided sufficient draft guidance on surcharge notifications?

Period for payment of surcharges

Question 12: To what extent do you agree with the period of 60 days for operators to pay a surcharge?

Publication of surcharges

Question 13: To what extent do you agree with what the draft regulations stipulate about the publication of surcharges by the Secretary of State?

Time limit for objections to surcharges

Question 14: To what extent do you agree with the time periods for lodging objections to surcharges for:

a) operators

b) other interested parties

Question 15: To what extent do you agree that we have provided sufficient draft guidance on objections to surcharges?

Notification of non-payment of surcharge to the Secretary of State

The draft regulations state provide that a harbour authority must notify the Secretary of State where a surcharge it has imposed has still not been paid 50 days after the day on which the surcharge notification was sent. The harbour authority will have a period of 5 days to send this notification. The notification must include:

• the name of the operator to whom the surcharge notification has been sent
• the date and time from which ships providing the service to which the surcharge relates will be refused access to the harbour until the surcharge is paid

Question 16: To what extent do you agree with the time period for harbour authorities to notify the Secretary of State of non-payment of surcharges?

Refusal of access

Section 11 of the act provides that a harbour authority must refuse access to its harbour if the authority has imposed a surcharge on the operator of a service and the operator has not paid the surcharge in the manner and period prescribed in regulations, irrespective of whether an objection has been made under section 10. Failure to comply with this duty is an offence, punishable on summary conviction by a fine in England and Wales, or a fine not exceeding level 5 on the standard scale in Scotland and Northern Ireland.

The duty to refuse access to a harbour is subject to any direction by the Secretary of State not to refuse access. We expect this power to be used infrequently as a contingency in circumstances where the refusal of access may cause disruption or damage to key passenger services or national resilience. The duty also does not apply in circumstances where a harbour authority has imposed a surcharge but must later refund this surcharge under section 6(5) because the operator subsequently provides a valid equivalence declaration that covers the period for which the surcharge was imposed.

Section 11(4) of the act provides exceptions where a harbour authority must not refuse access to its harbour: in cases of force majeure; where there are overriding safety concerns; where there is a need to reduce or minimise the risk of pollution; and where there is a need to rectify deficiencies on the ship.

Section 11(7) of the act provides for regulations to make provision as to how a harbour authority is to communicate refusal of access. Subsection (8) clarifies that nothing in section 33 of the Harbours, Docks and Piers Clauses Act 1847 prevents refusal of access to a harbour under this section.

The draft regulations make provision as to the communication / notification of refusal of access.

The draft regulations provide that a harbour authority must send a refusal of access notification to the operator so that it is received by the operator within the period of 5 days beginning with the day 45 days after the day on which the surcharge notification was sent.

Chapter 5 of the draft guidance provides worked case study examples to illustrate the processes involved in refusal of access.

For each of the following questions please answer whether you agree, disagree, neither agree nor disagree, or don’t know. Please also provide an explanation for your answer. Where you disagree, please explain what changes you think should be made.

Question 17: To what extent do you agree with the time period for harbour authorities to send refusal of access notifications to operators?

Question 18: To what extent do you agree with what the draft regulations stipulate about the process for providing a refusal of access notification and the contents of the refusal of access notification?

Question 19: To what extent do you agree that we have provided sufficient draft guidance on refusal of access?

Responsible harbour authority

Section 18 of the act defines “harbour” and “harbour authority” –

• in relation to England, Wales and Scotland, to have the same meanings as in the Harbours Act 1964, and
• in relation to Northern Ireland, have the same meanings as in the Harbours Act (Northern Ireland) 1970

Regulation 4 in the draft regulations provides that where there is more than one harbour authority in respect of a harbour, the harbour authority in respect of the harbour for purposes of these regulations is the harbour authority responsible for the berth at which ships providing the relevant service dock.

“Berth” is defined as meaning any berth, dock, wharf, quay, pier, jetty or similar structure at which sea-going ships can ship or unship goods or embark or disembark passengers.

Question 20: To what extent do you agree with how the responsible harbour authority is determined under the draft regulations?

Agree, disagree, neither agree nor disagree, or don’t know. If you disagree, please explain what changes you think should be made.

General comments

Question 21: Do you have any further comments or questions on the draft guidance?

Question 22: Do we have any further comments or questions on the draft regulations?

Question 23: Overall, do you believe that the draft regulations adequately reflect and translate the policy intent? Please provide your reflections in as much detail as possible.

Question 24: Do the draft regulations and draft guidance cause any inconsistencies, gaps or overlaps with the provisions elsewhere in the Act or draft regulations? Please provide your reflections in as much detail as possible.

Question 25. Do you believe that any of the procedures outlined will be unworkable in practice or cause any significant issues? Please provide your reflections in as much detail as possible.

Equalities assessment

We are also seeking views on the potential impacts our proposals may have on groups of people with protected characteristics. Protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Question: What do you consider to be the equalities impact on individuals with protected characteristics of any of the policy proposals to be included in the draft regulations? Please give reasons and any evidence that you consider relevant.

Next steps

Following this consultation, and the second on consultation on the tariff of surcharges and the NMWe, the final version of the secondary legislation will be laid in Parliament. That will combine the draft regulations contained within the two consultations into one single statutory instrument. We will be publishing an enactment impact assessment to update the version published when the bill was introduced. We expect that the regime will come into force in the first half of 2024.

A government response to the consultation including the next steps will be published following the closing date of the second part of the consultation.

If you have questions about this consultation, please contact:

The Seafarers’ Wages regulations team at the following email address: remunerationconsultation@dft.gov.uk.

Freedom of information

Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004.

If you want information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory code of practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.

In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information, we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the department.

The department will process your personal data in accordance with the Data Protection Act (DPA) and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties.

Data protection

The Department for Transport is carrying out this public consultation to gather views on the draft regulations and associated guidance required to bring the provisions of the Seafarers’ Wages Act fully into force, ahead of the regulations being laid in Parliament.

This consultation and the processing of personal data that it entails is necessary for the exercise of our functions as a government department. If your answers contain any information that allows you to be identified, DfT will, under data protection law, be the controller for this information.

As part of this consultation, we’re asking for your name and email address. This is in case we need to ask you follow-up questions about any of your responses. You do not have to give us this personal information. If you do provide it, we will use it only for the purpose of asking follow-up questions.

DfT’s privacy policy has more information about your rights in relation to your personal data, how to complain and how to contact the Data Protection Officer.

To receive this information by telephone or post, contact us on 0300 330 3000 or write to:

Data Protection Officer
Department for Transport
3rd Floor
One Priory Square
Hasting
East Sussex TN34 1EA

Your information will be kept securely on secure IT systems within DfT and will be destroyed within 24 months after the consultation has been completed.

Consultation principles

This consultation is being conducted in line with the government’s consultation principles.

If you have any comments about the consultation process, contact:

Consultation Co-ordinator
Department for Transport
Zone 1/29 Great Minster House
London SW1P 4DR

Email consultation@dft.gov.uk