Following the high-profile P&O affair in March 2022, when the ferry operator made hundreds of workers redundant and replaced them with agency staff, the UK government was quick to condemn P&O’s actions and promised a “package of measures” to safeguard the rights of seafarers working in UK waters. 

For our previous commentary on the government’s claims that P&O had exploited “legal loopholes” and some of the deficiencies in the application of existing UK employment law to seafarers, please click here.

The UK government has recognised that not all seafarers who are regularly working in UK waters are protected by existing UK national minimum wage laws. As a result, legislation has been proposed to ensure that seafarers who are working onboard ships that are regularly using UK ports are paid at least a “national minimum wage equivalent” (“NMWe”).

The Department for Transport has recently concluded a public consultation process that invited views on the government’s proposals. The government’s response to that consultation process has now been published and has resulted in the formulation of the draft Seafarers’ Wages Bill (the “Bill”), which has started to make its way through the parliamentary process.

The intention is that the level of the NMWe would be determined by separate regulations, and the government’s response to the public consultation does not give any specific detail on how the NMWe will be calculated. However, it seems as though the NMWe may well be less than the national minimum wage rates that apply to other categories of workers who are working in the UK.

If enacted in its current form, the Bill would place a heavy onus on harbour authorities to enforce compliance, the appropriateness of which was a matter of concern for respondents to the public consultation.

The headline points of the Bill are that the operator of a ship that visits UK ports with sufficient regularity could be requested to provide a declaration to the responsible harbour authority that the seafarers working onboard are being paid a rate at least equivalent to the NMWe. A harbour authority would be empowered to raise surcharges where valid NMWe declarations are not made (including where a false declaration of NMWe compliance is made) and to deny access to its harbours in the event of unpaid surcharges (unless certain specified exceptions applied).

The government has said that the Bill will apply to all commercial ships visiting UK ports at least once every 72 hours. However, the text of the draft Bill only enables a harbour authority to seek declarations of NMWe compliance from, and to take enforcement action against, ships that will be calling at ports operated by the harbour authority in question at least 120 times per year.

There are a number of harbour authorities in the UK, each with responsibility for different ports. Whether the proposed statutory wording accurately reflects the government’s intention or creates the potential for avoidance tactics remains to be seen.

There are also question marks over whether the Bill will achieve its stated objectives. While the government initially stated that it intended to make access to UK ports conditional upon NMWe compliance, it would appear as though the sole basis on which the Bill would allow access to UK ports to be denied is where a ship operator fails to pay a surcharge that has been levied by a harbour authority.

Whether the Bill will guarantee that seafarers who are regularly working in UK waters are paid at least the NMWe is also questionable. The Bill does not give seafarers individual rights to enforce payment of the NMWe. While empowering harbour authorities to levy punitive surcharges on ship operators ought to incentivise NMWe compliance, a breach of NMWe requirements may only serve to enrich harbour authorities rather than underpaid seafarers.

The UK government’s freedom to legislate in this area is restricted by a myriad of complex international legal obligations, but there may well be a feeling that the Bill does not deliver what was publicly promised.

The Bill is, of course, only in the draft stage and amendments may well be made before it is passed into law. It remains to be seen how the government intends to address other gaps in the protections that are afforded to seafarers under existing UK employment law.

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