term salaried hours work + regulation 35 + 35.—(1) “Salaried hours work” is work which is done under a seafarer’s contract and which meets the conditions in paragraphs (2) to (5) of this regulation.

(2) The first condition is that the seafarer is entitled under their contract to be paid—

regulation 35 2 a + (a)an annual salary, or

regulation 35 2 b + (b)an annual salary and one or both of—

regulation 35 2 b i + (i)a performance bonus, and

regulation 35 2 b ii + (ii)a salary premium.

(3) The second condition is that the seafarer is entitled under their contract to be paid that salary or salary and performance bonus or salary premium (or all three) in respect of their basic hours (as defined in paragraph (8)).

(4) The third condition is that the seafarer is not entitled under their contract to a payment in respect of the basic hours other than—

regulation 35 4 a + (a)an annual salary, or

regulation 35 4 b + (b)an annual salary and one or both of—

regulation 35 4 b i + (i)a performance bonus, and

regulation 35 4 b ii + (ii)a salary premium.

(5) The fourth condition is that the seafarer is entitled under their contract to be paid, where practicable and regardless of the number of hours actually worked in a particular week, month or other period, in instalments which—

regulation 35 5 a + (a)are equal and occur not more often than weekly and not less often than monthly, or

regulation 35 5 b + (b)occur monthly and vary but have the result that the seafarer is entitled to be paid an equal amount in each quarter.

(6) Circumstances where it may not be practicable to pay a seafarer by equal instalments, or by and equal amount in each quarter, include where—

regulation 35 6 a + (a)a performance bonus is awarded;

regulation 35 6 b + (b)a salary premium is paid;

regulation 35 6 c + (c)the annual salary is varied;

regulation 35 6 d + (d)a payment is made in respect of hours in addition to basic hours;

regulation 35 6 e + (e)the employment starts or terminates during a week, month or other period provided for in paragraph (5)(a) with the result that the seafarer is paid a proportionate amount of their annual salary for that week, month or other period.

(7) Work may be salaried hours work whether or not—

regulation 35 7 a + (a)all the basic hours are working hours;

regulation 35 7 b + (b)the seafarer works hours in excess of the basic hours (whether the seafarer is entitled to be paid for those excess hours or not);

regulation 35 7 c + (c)the annual salary may be reduced due to an absence from work.

(8) “Basic hours” are a number of hours in a year specified in or ascertained in accordance with a seafarer’s contract.

(9) A “performance bonus” is a payment paid to a seafarer on merit attributable to the quality or amount of work done in the course of more than one pay reference period.

(10) A “salary premium” is—

regulation 35 10 a + (a)an amount of pay which is—

regulation 35 10 a i + (i)in addition to the annual salary;

regulation 35 10 a ii + (ii)an increase in the rate of pay for particular working hours,

regulation 35 10 b + (b)in respect of the basic hours, and

regulation 35 10 c + (c)attributable to working—

regulation 35 10 c i + (i)at a particular time of the day;

regulation 35 10 c ii + (ii)on a particular day;

regulation 35 10 c iii + (iii)at a particular location;

regulation 35 10 c iv + (iv)in a particular working environment;

regulation 35 10 c v + (v)within a particular geographical area;

regulation 35 10 c vi + (vi)on a particular task;

regulation 35 10 c vii + (vii)subject to a particular responsibility.

The meaning of calculation year

term calculation year + regulation 36 + 36.—(1) In this Chapter, “calculation year” has the meaning given in the following paragraphs.

(2) For a seafarer whose annual salary is payable monthly then—

regulation 36 2 a + (a)if the seafarer commenced the employment on the first day of a month, the calculation year is—

regulation 36 2 a i + (i)the year beginning with that day;

regulation 36 2 a ii + (ii)in each subsequent year, a year beginning on an anniversary of that day;

regulation 36 2 b + (b)if the seafarer commenced the employment on any other day of a month, the calculation year is—

regulation 36 2 b i + (i)the period beginning with that day and ending with the day before the first anniversary of the first day of the next month;

regulation 36 2 b ii + (ii)in each subsequent year, a year beginning on an anniversary of the first day of that month.

(3) For a seafarer whose annual salary is payable other than monthly the calculation year is—

regulation 36 3 a + (a)the year beginning with the first day of the employment;

regulation 36 3 b + (b)in each subsequent year, a year beginning on an anniversary of that day.

Determining the basic hours in the calculation year

regulation 37 + 37.—(1) In this Chapter, the basic hours in a calculation year are determined in accordance with the following paragraphs.

(2) The basic hours in the calculation year are the basic hours ascertained in accordance with the contract at the start of the calculation year, unless there is a variation to the basic hours which takes effect in the calculation year.

(3) Where a variation to the basic hours takes effect in the calculation year, the basic hours in the calculation year are determined by adding together—

regulation 37 3 a + (a)the proportion of basic hours in the calculation year in the period starting before the day during which the variation takes effect, and

regulation 37 3 b + (b)the proportion of basic hours in the calculation year in the period after the day during which the variation takes effect until the end of the calculation year.

(4) If more than one contractual variation takes effect in the calculation year, the “basic hours in the calculation year” are determined by adding together—

regulation 37 4 a + (a)the proportion of basic hours in the calculation year in the period starting before the day during which the first variation takes effect, and

regulation 37 4 b + (b)for each variation, the proportion of basic hours in the calculation year in the period after the day during which the variation takes effect and before the day during which the next variation takes effect or, in the case of the final variation, the end of the calculation year.

(5) The proportion of basic hours in the calculation year for each of the periods in paragraphs (3) and (4) is calculated using the formula—

• (D / 365) x H

• where—

  term d + “D”means the number of days in the period;

  term h + “H”means the basic hours in the calculation year which have effect in that period.

Determining total hours of salaried hours work in a pay reference period

regulation 38 + 38.—(1) The total hours of salaried hours work in a pay reference period are to be calculated in accordance with the following paragraphs.

(2) Where the pay reference period is a week, the total hours of salaried hours work in that period are the basic hours divided by 52.

(3) Where the pay reference period is two weeks, the total hours of salaried hours work in that period are the basic hours divided by 26.

(4) Where the pay reference period is four weeks, the total hours of salaried hours work in that period are the basic hours divided by 13.

(5) Where the pay reference period is a month, the total hours of salaried hours work in that period are the basic hours divided by 12.

(6) Where the pay reference period is any other period, the total hours of salaried hours work in that period are the basic hours divided by the figure obtained by dividing 365 by the number of days in the pay reference period.

(7) The basic hours are to be ascertained in accordance with the seafarer’s contract on the first day of the pay reference period in question unless paragraphs (8) or (9) apply.

(8) The total hours of salaried hours work in a pay reference period are to be ascertained in accordance with regulations 40 to 42 (excess hours) if the seafarer—

regulation 38 8 a + (a)during or before the payment reference period, works hours in excess of the basic hours in the calculation year, and

regulation 38 8 b + (b)is not entitled to be paid more than an annual salary, a performance bonus and a salary premium for those excess hours.

(9) The total hours of salaried hours work in a pay reference period are to be determined in accordance with regulation 43 (hours of salaried hours work if employment terminates or contract varied) if—

regulation 38 9 a + (a)the employment terminates before the end of the calculation year, or

regulation 38 9 b + (b)the contract is varied before the end of the calculation year so that it is no longer a contract for salaried hours work.

Absences from work to be reduced from the total hours of salaried hours work in a pay reference period

regulation 39 + 39.—(1) The hours a seafarer is absent from work are to be subtracted from the total hours of salaried hours work in a pay reference period if all of the following conditions are met—

regulation 39 1 a + (a)the employer is entitled under the seafarer’s contract to reduce the annual salary due to the absence;

regulation 39 1 b + (b)the employer pays the seafarer less than the normal proportion of annual salary in the pay reference period as a result of the absence.

(2) The hours during which a seafarer takes industrial action are to be subtracted from the total hours of salaried hours work in a pay reference period if an annual salary was payable for those hours, or would have been payable but for the industrial action.

Determining whether a seafarer works excess hours

regulation 40 + 40.—(1) For the purposes of this regulation and regulations 38(8) and 42, a seafarer works excess hours if all of the following hours added together exceed the basic hours in a calculation year—

regulation 40 1 a + (a)hours worked which form part of the basic hours in the calculation year;

regulation 40 1 b + (b)hours when the seafarer was absent from work which form part of the basic hours in the calculation year;

regulation 40 1 c + (c)hours worked in the calculation year which do not form part of the basic hours in the calculation year in respect of which the seafarer had no entitlement under their contract to a payment other than annual salary or annual salary and a performance bonus or salary premium (or all three);

regulation 40 1 d + (d)hours treated as worked in accordance with regulation 41 to the extent that such hours consist of hours in respect of which the seafarer had no entitlement under their contract to a payment other than annual salary or annual salary and a performance bonus or salary premium (or all three).

(2) Hours during which the seafarer was taking part in industrial action are not to be included in sub-paragraphs (a) to (d).

(3) In this Chapter references to “excess hours” are to be construed in accordance with paragraphs (1) and (2).

Hours treated as worked for the purpose of determining whether a seafarer works excess hours

regulation 41 + 41.—(1) The hours listed in paragraph (2) are treated as worked—

regulation 41 1 a + (a)for the purposes of regulation 40(1)(d) and accordingly for the purposes of determining whether the seafarer works excess hours; and

regulation 41 1 b + (b)for the purposes of determining the number of hours of salaried hours work in that year in accordance with regulation 42 where the seafarer works excess hours.

(2) The hours referred to in paragraph (1) are—

regulation 41 2 a + (a)hours a seafarer spends training when the seafarer would otherwise be working;

regulation 41 2 b + (b)hours a seafarer is available at or near a place of work for the purposes of working, unless the seafarer is at home;

regulation 41 2 c + (c)hours a seafarer spends travelling for the purposes of working, when the seafarer would otherwise be working, unless the travelling is between—

regulation 41 2 c i + (i)the seafarer’s home, or a place where the seafarer is temporarily residing other than for the purposes of working, and

regulation 41 2 c ii + (ii)a place of work or a place where an assignment is carried out.

(3) In paragraph (2)(b), hours when a seafarer is available only includes hours when the seafarer is awake for the purposes of working, even if a seafarer is required to sleep at or near a place of work and the employer or operator provides suitable facilities for sleeping.

(4) In paragraph (2)(c), hours treated as hours when the seafarer would otherwise be working include—

regulation 41 4 a + (a)hours when the seafarer is travelling for the purpose of carrying out assignments to be carried out at different places between which the seafarer is obliged to travel, and which are not places occupied by the employer or operator;

regulation 41 4 b + (b)hours when the seafarer is travelling where it is uncertain whether the seafarer would otherwise be working because the seafarer’s hours of work vary either as to their length or in respect of the time at which they are performed.

Determining total hours of salaried hours work if a seafarer works excess hours

regulation 42 + 42.—(1) Paragraph (2) applies to the first pay reference period in a calculation year during which—

regulation 42 1 a + (a)a seafarer has, during the calculation year to date, worked all of their basic hours for that calculation year, and

regulation 42 1 b + (b)begins to work excess hours.

(2) Where this paragraph applies, the total hours of salaried hours work in the pay reference period are calculated by adding together all of the following hours—

regulation 42 2 a + (a)the proportion of basic hours attributable to the part of the pay reference period starting before the day during which the seafarer worked excess hours;

regulation 42 2 b + (b)the proportion of basic hours attributable to the part of the pay reference period starting on the day during which the seafarer worked excess hours;

regulation 42 2 c + (c)the number of hours actually worked in the pay reference period starting on the day during which the seafarer worked excess hours;

regulation 42 2 d + (d)the number of hours treated as worked, in accordance with regulation 41, in the pay reference period starting on the day during which the seafarer worked excess hours.

(3) In paragraph (2)(a) and (b), each proportion of basic hours in the pay reference period is calculated using the formula—

• (D/365) x H

• where—

  term d + “D” means the number of days in the part of the pay reference period referred to in paragraph (2)(a) or (b);

  term h + “H” means the basic hours in the calculation year.

(4) Reductions from the basic hours in the calculation year for absences, in accordance with regulation 39 (absences from work), must only be made from the proportion of basic hours determined under paragraph (2)(a).

(5) For each pay reference period in the calculation year after the pay reference period referred to in paragraph (1), the total hours of salaried hours work are calculated by adding together all of the following hours—

regulation 42 5 a + (a)the number of hours of salaried hours work in the pay reference period determined in accordance with regulation 38(2) to (6) (determining hours of salaried hours work);

regulation 42 5 b + (b)the number of hours actually worked in the pay reference period;

regulation 42 5 c + (c)the number of hours treated as worked in the pay reference period in accordance with regulation 41.

(6) Regulation 39 (absences from work) does not apply to the calculation in paragraph (5)(a).

Total hours of salaried hours work if the employment terminates or contract is varied

regulation 43 + 43.—(1) Where the employment terminates before the end of a calculation year the total hours of salaried hours work in the final pay reference period are calculated in accordance with the following paragraphs.

(2) Where the seafarer does not work excess hours, the total hours of salaried hours work in the final pay reference period are the sum of the following—

regulation 43 2 a + (a)the number of hours of salaried hours work in the pay reference period calculated in accordance with regulation 38(2) to (6) (determining hours of salaried hours work), and

regulation 43 2 b + (b)the number of hours (if any) by which A exceeds B where—

term a + “A” is the number of hours determined in accordance with regulation 41, and

term b + “B” is the total of the number of hours of salaried hours work determined in accordance with regulation 38(2) to (6) in respect of all pay reference periods (including the final pay reference period) since the beginning of the calculation year.

(3) Where the seafarer works excess hours, the total hours of salaried hours work in the final pay reference period are the sum of the following—

regulation 43 3 a + (a)the number of hours determined in accordance with regulation 42, and

regulation 43 3 b + (b)the number of hours of salaried hours work calculated in accordance with regulation 38(2) to (6) for the period beginning on the day following the last day of the final pay reference period and ending at the end of the calculation year as if—

regulation 43 3 b i + (i)it was a single pay reference period (containing that number of days), and

regulation 43 3 b ii + (ii)the seafarer had remained employed until the end of the calculation year without any absences.

(4) If a contract for salaried hours work is varied with the effect that it is no longer a contract for salaried hours work, this regulation is to apply as if the employment of the seafarer had been terminated and the last day of the seafarer’s final pay reference period had fallen on the day before the day on which the variation took effect.