Letter of the law
Without constant monitoring, ever-evolving laws can catch ports on the hop, finds John Bensalhia
“Change is the law of life”: John F Kennedy's forward looking statement puts the past aside while keeping a beady eye on the future. When it comes to legislation changes, never a truer word was spoken.
While a legislation can lay the foundations for conduct in a specific area, another legislation can be introduced further down the line to add to or change that earlier law. Whatever the legislation, ports need to pay particular attention to ensure safe, fair and proper working conduct.
Take health and safety. The UK's general Health & Safety At Work Act of 1974 (HSW) applies to employers, people in control of the premises, self-employed people and employees. All must ensure the health and safety of other people and themselves.
Matthew Gore, senior associate of Holman Fenwick Willan LLP's Ports & Terminals Group, comments: “While there is no specific reference to the port sector in the HSW, sections 2 and 3 place a general duty on employers to ensure, so far as is reasonably practicable, that the health, safety and welfare at work of all its employees or those persons who may be affected thereby are not affected.
“Schedule 3A of the HSW lists the penalties for offences under the legislation. An offence under sections 2 and 3 of HSW, where an employer is a company, could lead to a fine not exceeding £20,000 and for more serious offences on conviction of indictment, could lead to imprisonment for up to two years, or a fine, or both.”
Recently, an Approved Code Of Practice (ACOP) 2014 was introduced with respect to health and safety legislation at UK docks. “The Health & Safety Executive has the overarching control of legislation for health and safety at ports and harbours through the Approved Code of Practice 2014,” explains Mr Gore.
“ACOP provides the legislative framework for safety in docks and in harbour areas by regulating, among others, the suppliers of plant and equipment, dock employers, managers, safety officers, safety representatives and workers. ACOP focuses on enabling duty-holders of all sizes to easily understand the key requirements needed to comply with the general duties of the HSW and other relevant statutory provisions.”
ACOP supplements the UK's Management of Health and Safety Regulations 1999 (MHSR) and suggests that the more hazardous the site/equipment, the more developed the risk assessment needs to be. “Regulation 3 of the MHSR requires all employers to carry out an assessment of the risks to workers and others who may be affected by their work or business,” says Mr Gore. “The assessment should identify hazards and evaluate the extent of the risks involved, taking into account existing precautions and their effectiveness. To this end, Regulation 4 and Schedule 1 set out the principles of prevention which include: avoiding risks; combating the risks at source; and giving appropriate instructions to employees.”
A challenge facing ports is the extent and variety of operations. Richie Morgan, health and safety manager at the Port of Milford Haven, comments: “We are a major shipping port offering 24hr pilotage and safe navigation. We operate a marina, rent commercial properties, handle aggregates and a number of unusual consignments over our dock walls. On top of this we operate an international ferry terminal and host cruise liners. Amid all the port operations, the estuary is very popular for leisure boating too. And it’s not just our operations that matter. We have hundreds of contractors working with us. I don’t want any accidents in this port, and work every day to make sure we have systems in place to prevent accidents. Legislation provides the strong arm to back up my work.”
The HSW also regulates stevedoring and working conditions with primary consideration for workplace health and safety and staff welfare. “In practice it is evident that each employer or organisation will develop their own risk assessment methods, safe systems of work procedures and means of applying the HSW,” says Mr Gore.
He explains that further international guidelines in relation to stevedoring activities are provided by the International Labour Organisation via the Occupational Safety and Health (Dock Work) Convention 1979, which address safety conditions among dockworkers. “Although the convention has not been ratified by the UK, it sets out useful guidelines for safe operating procedures for handling different types of cargoes, proper stacking and storage of cargoes and general safe operating procedures for dockworkers along the berths and throughout maritime terminals which may be taken into account by port operators and other relevant parties,” says Mr Gore.
Spain's National Ports Authority, Puertos del Estado, is all too familiar with the letter of the law in its ports. In December 2014, Puertos del Estado was forced to change its provision methods of stevedoring services in its domestic ports. The demand was made by the European Union's Court of Justice with a view to implementing the changes as soon as possible. According to the Luxembourg Court, the Spanish stevedore system breached legislation as it placed a barrier to entry on companies based in other EU states. In order to offer these services in Spanish ports, outside companies must become part of an existing stevedoring company and solely use workers employed by the organisations in the port.
With respect to environmental legislation, Global Ports says that in Russia, port operators must follow rules laid down to protect the environment. The Ministry of Natural Resources and Ecology has established environmental impact standards to cover, for example, emission limitations and hazardous waste disposal. Any violation can lead to suspension of operations or court action which is taken to ensure that any regulation breach is remedied as soon as possible.
"Applicable environmental regulation is very much driven by location,” says Dave Levell, environmental manager of the Port of Milford Haven. “For example, here we are, Britain’s biggest energy port, almost exclusively operating in a Marine Special Area of Conservation and a beautiful one at that. This means there is a significant amount of legislation feeding in from European level, for example via the Habitats Directive.
"We are a port that operates within UK law and consequent domestic transposition of European law. However, we are also a Welsh Port, so there can also be a third strata of regulation from the Devolved Administration. Natural Resources Wales handles marine licensing on behalf of Welsh Government. It’s complex, and not all the different levels of legislation necessarily join up to give us a smooth ride.”
In the UK, port and harbour environmental protection is under the auspices of the Environmental Agency. “The Environmental Agency (EA) oversees the consistent application of the Environmental Protection Act 1990 (EPA),” says Mr Gore. “The EPA covers waste management, as well as noise and other types of nuisance. Ports throughout the UK work closely with the EA on a local level, as well as the relevant port health authorities, in relation to various environmental issues such ranging from noise control and handling of waste to food hygiene.”
Alec Don, chief executive at the Port of Milford Haven, says that there is a fine balance between human activity with its socio-economic benefits, and conservation. “As a Trust Port it is our duty to operate the port safely, efficiently and within the law, and to invest profits back into the local economy, creating jobs and growth. We need to represent the socio-economic arguments at an early stage in any new legislative process, to make sure our business and the businesses and communities we support, are represented. It is vital that any policies developed do not hinder investment opportunities or threaten the competitiveness of businesses that provide essential services and support jobs.”
With many aspects to consider, legislation is a crucial port priority. But as Mr Morgan concludes, good legislation makes a better, more skilled workforce. “It’s in our interests to make sure the industry plays a part in developing effective legislation, where it can.”
Running to keep pace with the legislators
It's undoubtedly a challenge for ports to keep up to date with legislative changes.
"Legislation is not subject to a periodic or systematic process of change,” says Milford Haven's Dave Levell. “There is a continual churn, introducing new regulations all the time. This presents a big challenge for us as a port to keep up.”
Updates, revisions or updates depend on current developments in the port sector. “There are no fixed points in time when legislation will be updated,” adds HFW's Matthew Gore. “For example, if particular problems occurring in ports are not only compounded on a yearly basis but also felt by most major ports in the country, then this is likely to prompt the relevant industry groups to put pressure on the legislators and demand changes.”
However, trade associations can make ports aware of changes. Mr Gore says that membership of various trade associations, such as the UK's Port Skills & Safety, British Ports Association and International Cargo Handling Coordination Association can alert ports to these changes. “Membership of such associations implies not only attendance at regular meetings which aim to keep members abreast of changes, as well as the ability to receive such updates via email updates, reports and circulars.”
Mr Gore advises that membership of these organisations is important for ports to remain aware of any developments. “As there is no governmental or official means of being informed of changes in legislation, ports are advised to maintain membership of various suitable associations.”
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