Professional divers have previously had different protection depending on which platform they dove from. To ensure a more general protection regulation, in May 2021, the Storting adopted a statute stating that all professional diving in Norwegian waters shall be regulated by the Working Environment Act. Before the amendment comes into effect, the Government wants to prepare a regulation that shall ensure the current rights of the professional divers under the Ship Labour Act, as well as giving them new rights under the Working Environment Act.
Professional divers shall be transferred to the Working Environment Act
In May 2021, the Storting decided that the Working Environment Act shall apply to employees carrying out “diving operations” as well, regardless of the platform they dive from, and whether the person participating in a diving operation from a ship is part of the ship’s crew. Consequently, several employees who are currently covered by the Ship Labour Act will be “transferred” to the Working Environment Act.
The purpose of the amendment is to safeguard the health, environment and safety of divers and at the same time ensure a general supervision regime and safety framework for all diving in Norwegian waters.
The amendment has not yet entered into force.
Will professional divers have it both ways?
The Ship Labour Act contains certain special rights that covered in the Working Environment Act. When the professional divers who are a part of the ship’s crew are transferred to the Working Environment Act, these rights will as a starting point be lost for the relevant employees.
Key rights following from the Ship Labour Act without corresponding rights in the Working Environment Act are in particular:
- Employees covered by the Ship Labour Act are entitled to full pay in the event of incapacity to work as a result of illness or injury, not limited to the national insurance maximum amount.
- Pursuant to the Ship Labour Act, the shipping company is jointly liable with the employer for the payment of wages, holiday pay and other financial claims. The joint and several liability has practical significance in cases where the employee is not employed by the shipping company, but is hired as crew on the ship.
The Ministry of Labour and Social Inclusion is now proposing a stipulation with belonging regulation to ensure professional divers the rights they currently have pursuant to the Ship Labour Act, while also giving them new rights when the employee protection is moved to the Working Environment Act.
Among other things, the Ministry refers to the fact that it has not been the intention of the amendment that the relevant employees should lose their rights to wages in the event of illness and injury. The joint and several liability is proposed to be applicable as far as possible.
- The employees will be covered by either the Working Environment Act or the Ship Labour Act. These acts are mutually exclusive as protection acts for the individual employee.
- For businesses where diving is not a part of the business’s ordinary operations, but where diving operations are carried out by ship workers more randomly and exceptionally, for example in connection with the maintenance of their own ship, the Ship Labour Act, not the Working Environment Act, will apply.
- The Ship Safety and Security Act applies to ships regardless of whether the employees on the ship are covered by the Working Environment Act or the Ship Labour Act.
- The Working Environment Act’s working and rest time provisions shall fully apply, and thus take precedence over the Ship Safety and Security Act’s rules relating to this area.
The Ministry has already started the work on a new regulation and aims to finalise it as soon as possible. SANDS is following the development closely!