Topic 10 Contracts And Emplyment Flashcards
With reference to United Kingdom merchant shipping legislation:
(a) Describe the standard crew agreement approved for use on pleasure yachts, explaining the purpose of each of the documents involved. (15) 201-209
(b) Explain the circumstances which determine when a pleasure yacht is required to carry an approved crew agreement. (5) p201
a) Outer cover, details
Contractual clauses, rights and obligations
List of crew
List of young persons
Copy of crew agreement
b)
Pleasure vessels as defined in the MLC Minimum Requirements Regulations whilst falling outside the requirement to have Seafarer Employment Agreements will however continue to require crew agreements if they undertake voyages, other than a coastal voyage, for which more than 4 members of the crew receive wages for their employment.
02
Describe and explain the procedure to be followed when engaging a crew for a United Kingdom yacht, using a standard approved crew agreement, so as to comply with all relevant United Kingdom merchant shipping regulations. (20) p211
PROCEDURE FOR ENGAGING CREW UNDER THE STANDARD FORM OF
APPROVED CREW AGREEMENT
• The number and statutory qualifications of the crew must be such that the yacht complies with any applicable mandatory minimum standards.
• In terms of numbers, actual experience and capability, the manning must be such that proper watchkeeping arrangements for the voyage in question can be made and that the yacht is seaworthy.
• Make up a standard approved crew agreement for yachts using the required documents approved by the M.C.A
• Documents required: outer cover, standard terms and conditions approved for yachts; blank crew lists for those crew members party to the approved agreement; blank crew lists for other crew members and blank lists of young persons. To be put together in this order.
• Complete the details required on the outer cover and on the standard terms /
• This must be signed by the master as the employer’s representative.
• Any additional terms must be specifically approved by the M.C.A.
• This contract must be used to employ those members of your crew working on deck, in the engine room, galley crew, etc. and may be used for other crew members if they agree.
• Enter the particulars of each of these crew members in turn on the first crew list giving each a crew list number and get these crew members to sign the crew list.
• Record the crew members professional qualifications in the space at the bottom of this crew list.
• Complete the second crew list recording the details of the remaining crew members, next of kin etc. including the master’s details.
Any employed crew member under the age of 18 years must aiso be recorded on the List of Young Persons.
• When all the crew have been engaged, make up a copy of the crew agreement using form ALC 6 for posting in the crew accommodation
03
Define a trainee under the LY3 code.
The following definition of “trainee” was included in the LY3 Code:
A trainee SHOULD
1. Be engaged for the sole purpose of:
a) obtaining instruction in the principles of responsibility, resourcefulness, loyalty and team endeavour; and/or
b) instruction in navigation and seamanship, marine engineering or other shipboard related skills.
2. Be considered to form part of a ‘trainee voyage crew’; and
3. Participate in the operation of the vessel to the best of his or her ability.
Q4
A member of the crew of a United Kingdom pleasure yacht has been injured as a result of an accident on board a yacht at sea and has to be evacuated by helicopter to hospital.
Explain how the Master of this yacht should manage such an incident so as to comply with all relevant Merchant Shipping Legislation. (20)
PROCEDURE TO FOLLOW IF A CREW MEMBER IS INJURED AT SEA OR IS INCAPACITATED DUE TO ILLNESS AND DISCHARGED TO HOSPITAL
• Seek Radio Medical Advice
• Treat injuries as best possible
• Keep comfortable
• Reassure
• Report to Owners / Managers
• Permission to deviate to land ashore
• Advise insurers / P&I Club
• Is minimum safe manning affected / apply for exemption
• Advise next of Kin
• Make arrangements for the hospitalization and medical treatment needs
• Arrange for the settlement of resulting accounts either directly, through an agent, or in consultation with the Consulate or other proper officer.
• In any case, notify the Consulate that you are leaving a seaman behind and record this in in the OLB in accordance with the log book regulations.
• Entry in OLB - Narrative section
• Date of accident and brief description
• Personal gear tallied, append to back of OLB
• Accident report appended to back of OLB
• Crew list page 2-7 record of seafarers insert narrative pg number where seamen mentioned.
• Entry in OLB the seaman is sinned off
• Entry in narrative section Radio Medical Advice obtained.
• Inform MAIB with 24 hrs or soon as practical
• Make arrangements and pay for the crew member’s maintenance when released from hospital and for repatriation to a proper return port.
• If the crew member cannot take charge of his personal effects, collect these in the presence of a witness, a list to accompany the property and be entered in the Official Log Book.
• Land these effects to the hospital or other responsible person for the crew member’s use on discharge from hospital.
• Formally terminate the contract of employment recording date, place and reason for termination on the crew list and in the Official Log Book.
• Draw up an account of wages in an approved form and pay the balance to the crew member if possible. Otherwise instruct employer to pay when appropriate.
• Notify the owner to amend their crew list.
• Complete the crew member’s discharge book or give a certificate of discharge.
05
A crew member on board a U.K. ship has to be landed to hospital and discharged from the ship. Explain what the master must do so as to comply with all relevant UK merchant-shipping regulations. (20)
10.14.2 PROCEDURE TO FOLLOW IF A CREW MEMBER IS INJURED AT SEA OR IS INCAPACITATED DUE TO ILLNESS AND DISCHARGED TO HOSPITAL
• Seek Radio Medical Advice
• Treat injuries as best possible
• Keep comfortable
• Reassure
• Report to Owners / Managers
• Permission to deviate to land ashore
• Advise insurers / P&I Club
• Is minimum safe manning affected / apply for exemption
• Advise next of Kin
• Make arrangements for the hospitalization and medical treatment needs
• Arrange for the settlement of resulting accounts either directly, through an agent, or in consultation with the Consulate or other proper officer.
• In any case, notify the Consulate that you are leaving a seaman behind and record this in in the OLB in accordance with the log book regulations.
• Entry in OLB - Narrative section
• Date of accident and brief description
• Personal gear tallied, append to back of OLB
• Accident report appended to back of OLB
• Crew list page 2-7 record of seafarers insert narrative pg number where seamen mentioned.
• Entry in OLB the seaman is sinned off
• Entry in narrative section Radio Medical Advice obtained.
• Inform MAIB with 24 hrs or soon as practical
• Make arrangements and pay for the crew member’s maintenance when released from hospital and for repatriation to a proper return port.
• If the crew member cannot take charge of his personal effects, collect these in the presence of a witness, a list to accompany the property and be entered in the Official Log Book.
• Land these effects to the hospital or other responsible person for the crew member’s use on discharge from hospital.
• Formally terminate the contract of employment recording date, place and reason for termination on the crew list and in the Official Log Book.
• Draw up an account of wages in an approved form and pay the balance to the crew member if possible. Otherwise instruct employer to pay when appropriate.
• Notify the owner to amend their crew list.
• Complete the crew member’s discharge book or give a certificate of discharge.
06
A crew member has to landed ashore for hospital treatment following an accident on board ship. Explain fully all of the Masters responsibilities and duties in this situation.
(20)
10.14.2 PROCEDURE TO FOLLOW IF A CREW MEMBER IS INJURED AT SEA OR IS INCAPACITATED DUE TO ILLNESS AND DISCHARGED TO HOSPITAL
• Seek Radio Medical Advice
• Treat injuries as best possible
• Keep comfortable
• Reassure
• Report to Owners / Managers
• Permission to deviate to land ashore
• Advise insurers / P&I Club
• Is minimum safe manning affected / apply for exemption
• Advise next of Kin
• Make arrangements for the hospitalization and medical treatment needs
• Arrange for the settlement of resulting accounts either directly, through an agent, or in consultation with the Consulate or other proper officer.
• In any case, notify the Consulate that you are leaving a seaman behind and record this in in the OLB in accordance with the log book regulations.
• Entry in OLB - Narrative section
• Date of accident and brief description
• Personal gear tallied, append to back of OLB
• Accident report appended to back of OLB
• Crew list page 2-7 record of seafarers insert narrative pg number where seamen mentioned.
• Entry in OLB the seaman is sinned off
• Entry in narrative section Radio Medical Advice obtained.
• Inform MAIB with 24 hrs or soon as practical
• Make arrangements and pay for the crew member’s maintenance when released from hospital and for repatriation to a proper return port.
• If the crew member cannot take charge of his personal effects, collect these in the presence of a witness, a list to accompany the property and be entered in the Official Log Book.
• Land these effects to the hospital or other responsible person for the crew member’s use on discharge from hospital.
• Formally terminate the contract of employment recording date, place and reason for termination on the crew list and in the Official Log Book.
• Draw up an account of wages in an approved form and pay the balance to the crew member if possible. Otherwise instruct employer to pay when appropriate.
• Notify the owner to amend their crew list.
• Complete the crew member’s discharge book or give a certificate of discharge.
08
A crew member dies as a result of an accident at sea. Explain what must be done at the time and on reaching port so as to comply with all relevant U.K. merchant shipping legislation. (20)
10.14.1 PROCEDURE TO FOLLOW IF A CREW MEMBER DIES AT SEA
•Personal effects to be gathered, checked and listed by two Officers and signed.
One copy goes to next of kin with personal effects and other is annexed to OLB.
• Complete relevant forms, MSF 4605 etc,
• OLB Entries to be made;
• Occurrence of death - on relevant page
• List of personal effects annexed to OLB and entered in narrative section.
“Entry regarding any inquiry that may have been conducted and copy of such
report annexed to OLB.
> Record any illness or injury which may have caused death.
• Consult Ship Captain’s Medical Guide, Ch. 12
•Establish cause of death if possible,
• Obtain any witness statements from relevant personnel asap,
• Inform your owners / managers,
• Check if death affects Minimum Safe Manning - if replacement required inform owner asap
• If in port inform agents and local authorities, or next port,
• Inform Next of Kin asap,
• Conduct investigation by Safety Officer if as result of accident,
• If as result of accident, inform MAIB,
• If as result of accident, preserve area of accident, take photos, preserve evidence etc
• Preserve body if at sea (best by chilling),
Amend crew list, articles of agreement and complete Seaman Discharge book of deceased,
• Inform P&I Club correspondent, they normally arrange repatriation of body etc.
• If body is
If body is to be repatriated or buried consult with proper officer, agent and the P&I Club correspondent about the procedure and ensure next-of-kin are consulted as well.
• Show respect and follow any cultural norms if known or advised.
Q9
A member of the crew of a United Kingdom yacht is absent at the time fixed for sailing and it is decided to terminate the crew member’s contract of employment and sail without him. Explain what the master of this yacht must do so as to comply with all relevant United Kingdom merchant shipping legislation. (20)
PROCEDURE TO FOLLOW IF AN AWOL SEAMAN IS LEFT BEHIND AT A PORT
• If efforts to locate the crew member have failed (police, immigration, hospitals), notify the Consulate or other Proper Officer of the intention to leave the person behind.
• Make arrangements through the Consulate, Proper Officer or Agent for the person’s maintenance, medical care if needed, and eventual repatriation should the person be located within 3 months of being left behind.
• Record information in the Official Log Book
- Discharge of seaman
• Actions taken and parties informed
• Terminate the contract of employment and amend the on-board crew list.
• Make up an account of wages in approved form and notify employer to pay when crew member is located.
• Notify changes to the crew list to owner.
• If property is left on board, collect under supervision of a witness, list property in the Official Log Book and accompany property.
• Property landed to a responsible person to be delivered to crew member when located.
• Amend the crew list in the Official Log Book with an entry concerning termination of contract and reasons.
• Complete Discharge Book, if in your possession, or give a certificate of discharge.
• Consider the need to replace the missing crew member - seaworthiness / safe manning.
Q12
a) State the requirement of the Code of Conduct for the Merchant Navy for the behaviour of seafarers employed on the vessel in an emergency situation. (5) p230
b) List 5 breaches of the Code of Conduct that do not lead to dismissal. (5) p228
c) Describe the process in the Code of Conduct to deal with breaches of a lesser degree of seriousness. (10)
a)
In any emergency or other situation in which the safety of the ship or of any person on board or the marine environment is at stake, the Master, Officers and Petty Officers are entitled to look for immediate and unquestioning obedience of orders. There can be no exceptions to this rule. Failure to comply will be treated as among the most serious of breaches of discipline and may also warrant prosecution under the provisions of the Merchant Shipping Acts.
b) Examples:
• offences of gross misconduct described above, which are not considered to justify dismissal in the particular circumstances of the case
• minor acts of negligence, neglect of duty, disobedience and assault
• unsatisfactory work performance
• poor time keeping
• stopping work before the authorised time
• offensive or disorderly behaviour.
c)Breaches of a lesser degree of seriousness may be dealt with by:
• an informal warning administered at an appropriate level a formal warning by an Officer
• a written warning by a senior Officer
• a final written warning by a senior Officer or the Master.
When a warning other than an informal warning is given, the seafarer should be advised of the likely consequences of further breaches of discipline.
014
What acts of misconduct detailed in the Code of Conduct for the Merchant Navy, if proved to the reasonable satisfaction of the Master, may lead to instant dismissal?
• assault (including threatening behaviour)
• wilful damage to the ship or any property on board
• theft (including attempted theft) or possession of stolen property
• possession of offensive weapons
• persistent or wilful failure to perform duty
• unlawful possession or distribution of drugs
• conduct endangering the ship, persons or cargo on board, or the marine environment
combination with others at sea to impede the progress of the voyage or navigation of the ship
• disobedience of a lawful order
• to be asleep on duty or fail to remain on duty, if such conduct would prejudice the safety of the ship, persons or cargo on board, or the marine environment
• breach of company rules and procedures relating to alcohol, drugs or smoking.
• failure to report to work without satisfactory roscon An and
Q15
What breaches of the Code lead to disciplinary action of the Master but not dismissal, (breaches of lesser degree of seriousness)?
Examples:
• offences of gross misconduct described above, which are not considered to justify dismissal in the particular circumstances of the case minor acts of negligence, neglect of duty, disobedience and assault
• unsatisfactory work performance
• poor time keeping
• stopping work before the authorised time
• offensive or disorderly behaviour.
Q16 p231
a) Explain the meaning of fair dismissal.
b) Explain the meaning of wrongful dismissal.
c) Explain the meaning of constructive dismissal.
d) Explain the reason for unfair dismissal.
e) What are the remedies for unfair dismissal in the UK?
a)Fair dismissal means dismissal for a fair reason and in a fair manner (due process to be followed). For an employer to dismiss an employee fairly, he must
• Have a valid reason for doing so;
• Act reasonably in treating that reason as a sufficient reason for dismissal.
b) Wrongful Dismissal
This may arise when there is a breach of the contract of employment by the employer.
This would mean either:
c)Constructive Dismissal
This is a form of unfair dismissal. Constructive dismissal occurs when you are forced to leave your job against your will because of your employer’s conduct.
d) Unfair Dismissal
This was introduced by employment legislation to further protect employees and occurs when someone is dismissed without a valid reason. Cases for unfair dismissal are always heard in an Industrial Tribunal. Unfair dismissal occurs when an employee is dismissed but:
• The employer has no valid reason for dismissal; and/or
• The employer does not follow the company’s formal disciplinary or dismissal process; and/or
• The employer does not act reasonably.
You can, however, be dismissed for ‘gross misconduct without your employer going through the normal disciplinary procedures. This is known as summary dismissal (dismissal without notice).
Q18
A crew member employed under a contract which incorporates the Code of Conduct for the Merchant Navy is found under the influence of alcohol whilst on watch. Explain how this matter should be dealt with so as to comply with the above Code and general principles of fair procedures. (20)
Gross misconduct
Fair dismissal means dismissal for a fair reason and in a fair manner (due process to be followed. For an employer to dismiss an employee fairly, he must:
• Have a valid reason for doing so;
• Act reasonably in treating that reason as a sufficient reason for dismissal.
Q19
A crew member is reported to be under the influence of alcohol while on watch.
a) Describe the disciplinary process that must be followed. (5)
b) Describe how the Master should act to comply with the law regarding fair dismissal. (5)
The disciplinary hearing
At the hearing the seafarer may:
•be accompanied at the hearing by a work colleague, or trade union official if available
• call relevant witnesses
• question witnesses on their evidence
• make any statement or comments on
• the evidence, in response to the alleged breach the appropriate penalty if the breach of discipline is substantiated.
At any hearing the seafarer will be invited to say whether or not s/he admits the alleged breach of discipline. If she admits it, the hearing will move immediately to consideration of penalty. If s/he does not admit it, the hearing will consider relevant evidence including any presented by the seafarer.
b) Fair dismissal means for a fair reason in a fair manner
Fair Dismissal
Crew members must be made aware of circumstances that could lead to dismissal.
The Code of Conduct for the Merchant Navy is one way of achieving this.
Captain’s Standing Orders for the yacht would be another.
The crew agreement can also assist in this respect.
a) Explain the term unfair dismissal. (2)
b) In case of unfair dismissal what remedies can an Employment Tribunal impose on the company? (6)
c) Explain the meaning of the term constructive dismissal. (2)
d) State 3 examples of constructive dismissal. (6)
e) Explain the meaning of the term wrongful dismissal. (2)
f) State 1 example of wrongful dismissal. (2)
a) Unfair Dismissal
Dismissed without a valid reason.
Unfair dismissal occurs when an employee is dismissed but:
• The employer has no valid reason for dismissal; and/or
• The employer does not follow the company’s formal disciplinary or dismissal process; and/or
• The employer does not act reasonably.
b)REMEDIES FOR UNFAIR DISMISSAL
1) Reinstatement;
2) Re-engagement: (comparable position)
3) An award of compensation.
c)Constructive Dismissal
This is a form of unfair dismissal. Constructive dismissal occurs when you are forced to leave your job against your will because of your employer’s conduct.
d)Constructive Dismissal
• The employer does not pay the employee
• The employer suddenly demotes the employee for no reason
• The employer allows other employees to harass or bully an employee
• The employee is humiliated in front of others
• The employer ignores the employee’s contractual rights
e) Wrongful Dismissal
This may arise when there is a breach of the contract of employment by the employer.
This would mean either:
f) Wrongful Dismissal
• Dismissal where the employer has not given the notice required by the contract.
