P & O Ferries (Bermuda) Ltd v Spencer, Court of Appeal - United Kingdom Employment Appeal Tribunal, February 28, 2005,  UKEAT 0433_04_2802
|Resolution Date:||February 28, 2005|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||P & O Ferries (Bermuda) Ltd v Spencer|
Appeal No. UKEAT/0433/04/CK
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 7 December 2004
Judgment delivered on 28 February 2005
HIS HONOUR JUDGE RICHARDSON
MR P GAMMON MBE
MS B SWITZER
P & O FERRIES (BERMUDA) LTD APPELLANT
MR D E SPENCER RESPONDENT
Transcript of Proceedings
On the true construction of the Master's Terms and Conditions under which Captain Spencer worked, and on the findings of the Tribunal, Captain Spencer's rostered hours over 12 hours were ``hours of work'' not ``short breaks'' or ``hours of rest''.
Master's Terms and Conditions construed in the light of Council Directive 1999/63/EC (Seafarers' Working Time).
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HIS HONOUR JUDGE RICHARDSON
This is an appeal against a decision of the Employment Tribunal sitting in Ashford entered in the register on 11 March 2004. By its Decision the Tribunal upheld a complaint by Captain David Edward Spencer that his employer, P&O Ferries (Bermuda) Ltd (``P&O''), had made unlawful deductions from his wages. P&O appeal against that finding.
The appeal turns upon the Captain Spencer's contract of employment, which incorporated ``Master's Terms and Conditions'' agreed between P&O and Captain Spencer's union, NUMAST. These terms and conditions were agreed in the light of Council Directive 1999/63/EC (Seafarers' Working Time). The appeal raises questions as to the scope of ``short breaks'' and ``hours of work'' as defined in the Master's Terms and Conditions.
P&O operated a system of dual command on its cross channel ferries. Captain Spencer was in effect paid on the basis of a 12 hour working day, but was rostered to be in command for longer. Was that additional time in command to be classified as hours of work, short breaks or hours of rest for the purposes of the Master's Terms and Conditions?
Captain Spencer was already working for Stena Line as a ship's master in 1998 when Stena Line was taken over by P&O. The new Master's Terms and Conditions took effect in June 1999 and were applied by agreement to all P&O's masters.
Captain Spencer was employed on the Dover- Calais route as Master of the Provence. But from October 1999 he was transferred to be Master of the European Highway on the Dover-Zeebrugge route.
On these ships two Masters are employed. This is exceptional in the shipping industry. Most ships have only one Master. But the special demands of cross-channel ferries are such that two Masters are employed. There will be numerous entries and departures from port in a single day.
Captain Spencer was employed on the LOB basis, where the crew live on board the vessel, typically one week off and one week on. There is a non-LOB basis, where crew return home at the end of each shift.
On the Dover-Calais route the Master would be rostered to be in command for 12 hours and would then hand over to the relief Master for the other 12 hours. However on the Dover-Zeebrugge route, where the ship was at sea for longer, the Master would be rostered to be in command for 14 hours and would hand over to his relief Master for 10 hours.
It is important to appreciate that, even when rostered to be in command, the Master was by no means always required to be on the bridge. Other experienced officers were generally available for the rest of the time. The Tribunal found that the Master was obliged to be on the bridge for 5 hours per roster. He was on call for the full 14 hours, but if not on the bridge his time was his own to allot.
The Tribunal did not explain why, when there were two Masters on the Zeebrugge route, one Master should be rostered for longer than the other. We were told that this rostering permits the junior of the two Masters to do some work on other duties which needed to be rostered. But we record this only to explain what might otherwise seem to be curious. It is not essential to our decision.
In September 2000 Captain Spencer wrote to the fleet manager asserting that he should not be required to be on duty for more than 12 hours in every period, and if he was required to be on duty for 14 hours he should be paid for 14 hours rather than 12 hours. This P&O did not and do not accept. This impasse lasted until Captain Spencer left P&O, except that in September 2002 his rostered time reduced to 13 hours.
In due course, when he left P&O's employment, Captain Spencer presented a complaint under section 13 Employment Rights Act 1996, claiming that there had been since 1999 a continuous series of deductions from his wages. This complaint, as we have said, the Tribunal determined in his favour.
The Masters Terms and Conditions
It is necessary to quote at some length from the Master's Terms and Conditions:
``ANNUAL DUTIES Number of DUTY PERIODS a Master is contracted to work in each calendar year.
ANNUAL HOURS Total number of HOURS OF WORK a Master is contracted to work in each calendar year.
DUTYPERIOD Period of time, including work and rest, actually spent on board a vessel in each 24 our period.
HOURS OF REST The time in a DUTY PERIOD outside HOURS OF WORK; this term does not include short breaks.
HOURS OF WORK The time in a DUTY PERIOD during which a Master is contracted to work on account of the ship.
WORK ROUTINES Distribution of working hours within a DUTY PERIOD.
1.1 The total safety of the vessel and its cargo, together with the welfare of all persons on board, must be the constant concern of the EMPLOYER'S Masters.
1.2 Masters will act prudently at all times in the EMPLOYER'S and COMPANY'S best interests, taking full account of statutory responsibilities and whilst so doing, keep the EMPLOYER and the COMPANY informed of all matters which in their opinion may directly or indirectly affect the EMPLOYER'S or COMPANY'S interests.
1.3 On those sailings having two Masters on board, it is recognised that only one Master shall have command of the vessel. The COMP ANY accept that, in all circumstances, the Master who is not in command will be exonerated of all responsibility as Master of the vessel for the period that the other Master is in command; also, that the seniority of one Master over another shall have no effect in these circumstances.
SALARY AND METHOD OF PA YMENT
5.1 Masters will be paid an Annual Salary in accordance with Appendix A. The annual salary for Masters previously employed by P&O European Ferries (Dover) Limited who are entitled to a 'red ringed' Core Supplement as defined on 31 December 1995 will be in accordance with the following formula:-
Annual Salary = Core Salary + Core Supplement
5.1.1 The Annual Salaries take account of all conditions of service. They are set at a level that completely covers the total work content of the job to which it applies, except where additional payments are specifically mentioned in these terms and conditions.
5.1.2 Payment of a Master's salary will be made for that calendar month by credit transfer to an account (which must be on the Automated Clearing System) nominated by the individual Master.
ANNUAL DUTIES, ROSTER PATTERNS AND HOURS OF WORK
9.1 Each Master will fulfill an ANNUAL HOURS requirement as shown in APPENDIX B
The Following Notes Apply:-
9 .2 GENERAL
9.2.1 The Master will carefully monitor his own, his Officers' and crew's duties throughout the time on board to ensure fatigue avoidance and that all work/rest routines comply with statutory regulations. This will include the provision by the EMPLOYER of a Relief Master/Pilotage exemption holder as necessary.
9.2.2 The rostered working year is from lst January to 31stDecember.
9.2.3 An ANNUAL HOURS system will apply to keep account of each Master's DUTY PERIODS, HOURS OF WORK and TIME OFF including LEAVE. To facilitate this the ANNUAL HOURS requirement will be apportioned equally for each day of the rostered year by applying a factor of ANNUAL HOURS divided by 365.
9.2.4 The application of this factor allows a direct comparison of HOURS OF WORK balance against ANNUAL HOURS requirement at any point in the rostered year...
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