P & O FERRIES (BERMUDA) LTD v MR D E SPENCER [2005] UKEAT 0433_04_2802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0433_04_2802Case No Appeal No. UKEAT/0433/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
P & O FERRIES (BERMUDA) LTDAPPELLANTMR D E SPENCERRESPONDENT
Before
His Honour Judge Richardson Mr P GammonDate 28 February 2005
[1]APPEARANCES For the Appellant MR STEPHEN ROBERTS (of Counsel) Instructed by: Messrs Osborne Clarke Solicitors 2 Temple Back East Temple Quay Bristol BS1 6EG For the Respondent Mr RAY LEMON (of Counsel) Instructed by: Messrs Bridge McFarland Solicitors 19 South Street Mary's Gate Grimsby NE Lincolnshire PN31 1SE - SUMMARY 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). Appeal dismissed. 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.[2]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.[3]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? The facts[4]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.[5]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.[6]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.[7]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.[8]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.[9]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.[10]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.[11]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.[12]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[13]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. ANCILLARY CONDITIONS1.1 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.1.1.1 Each DUTY PERIOD is 24 hours on board the vessel.1.1.2 The ROSTER PATTERN will be week-on, week-off. A week-on will be seven consecutive DUTY PERIODS.1.1.3 Within the DUTY PERIOD the Master will be available for 12 HOURS OF WORK.1.1.4 For safe operational reasons the COMPANY would not expect more than 12 hours to be worked in each DUTY PERIOD under normal circumstances. When, exceptionally, a Master has to perform more than 12 HOURS OF WORK in a DUTY PERIOD the actual number of HOURS OF WORK (except in the case of extended duties as defined under Section 9 and normal handovers) will be entered onto the time sheet and will count towards the ANNUAL HOURS requirement. The European Directive 1999/63/EC1.2 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. 5. 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 Supplement5.1.1 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. 9. 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 GENERAL9.2.1 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. This calculation takes into account any outstanding TIME OFF including LEAVE which may be due or reimbursed on termination of employment. 9.2.6 The distribution of HOURS OF WORK within each DUTY PERIOD, in compliance with all applicable legislation, will be according to the WORK ROUTINES for the vessel and the route served. 9.3 TIME OFF AND LEAVE9.3.1 Masters will work to a published roster that avoids accrual of large negative HOURS OF WORK balances and ensures that they achieve the ANNUAL HOURS requirement throughout the rostered year.9.3.2 Where it is necessary for a Master to take LEAVE before he has accrued sufficient HOURS OF WORK, and to facilitate the distribution of LEA VE throughout the year, the Master may temporarily have a negative HOURS OF WORK balance.9.3.3 Whilst Management will do their best to meet a Master's preference of when to take LEAVE, the Master should not assume that his preference can be met. In particular, the Master should not commit to any arrangement (e.g. costly holiday bookings), until the dates for the LEA VE are confirmed.9.3.4 In principle, TIME OFF and LEAVE generated by the appropriate ROSTER PATTERN shall be taken within the rostered working year in which it is generated.9.3.5 A Master's HOURS OF WORK balance will carry forward continuously from one working year to the next for the duration of employment. Any HOURS OF WORK in excess of the ANNUAL HOURS requirement will normally be addressed by rostering the Master additional TIME OFF. APPENDIX B - ANNUAL DUTIES, ROSTER PATTERNS AND HOURS OF WORK 1 LIVE ON BOARD VESSELS 1.1 Masters appointed to these vessels will be required to perform 2016 HOURS OF WORK by completing, in principle, 168 DUTY PERIODS within the rostered year. Whilst fulfilling this requirement they will be entitled to two rostered weeks LEA VE each year. ROSTER PATTERNS and HOURS OF WORK will be as follows:-[14]We have said that it is common ground the Terms and Conditions were agreed against the background of Council Directive 1999/63/EC concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association and the Federation of Transport Workers' Unions in the European Union.[15]The Directive implemented that Agreement, which is annexed to it. References to the Directive in this judgment are references to the annexed Agreement unless the contrary appears. The Agreement itself closely followed the terms of the International Labour Organization Convention C180 (Seafarers' Hours of Work and the Manning of Ships) 1996 . The Agreement provides - "Clause 2 For the purpose of the Agreement:(a) the term 'hours of work' means time during which a seafarer is required to do work on account of the ship;(b) the term 'hours of rest' means time outside hours of work; this term does not include(c) the term 'seafarer'means any person who is employed or engaged in any capacity on board a seagoing ship to which the Agreement applies; Clause 3 Within the limits set out within Clause 5, there shall be fixed either a maximum number of hours of work which shall not be exceeded in a given period of time, or a minimum number or hours of rest which shall be provided in a given period of time. Clause 5 1. The limits on hours of work or rest shall be either (a) maximum hours of work which shall not exceed (i) fourteen hours in any 24 hour period and (ii) 72 hours in any seven-day period; Or (b) minimum hours of work which shall not be less than (i) ten hours in any 24 hour period; and (ii) 72 hours in any seven-day period. 2. Hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length and the interval between the consecutive periods of rest shall not exceed shall not exceed 14 hours. ….. 4. In respect of situations when a seafarer is on call such as when a machinery space is unattended, the seafarer shall have an adequate compensatory rest period of rest is disturbed by call-outs to work." There were also provisions requiring records of seafarers' hours of work or rest to be maintained, given to the seafarer, displayed and examined: see clauses 8 and 9. The Merchant Shipping (Hours of Work) Regulations[16]It is convenient to complete the picture by referring to the Merchant Shipping (Hours of Work) Regulations 2002 , which were enacted to implement the Directive in relation to UK ships. It is common ground that these Regulations were applicable to the ships on which Captain Spencer worked.[17]The 1999 Directive allowed Member States a choice between stipulating maximum hours of work or minimum hours of rest. The 2002 Regulations stipulated minimum hours of rest.[18]The Directive permitted Member States to introduce more favourable provisions than the Directive . As regards minimum hours of rest the 2002 Regulations did so. Whereas the Directive required minimum hours of rest of 72 hours in any period of one week, the Regulations required a minimum of 77 hours – taken from the ILO Convention .[19]It was, we were told, for this reason that in 2002 the rostered hours for Captain Spencer and others on the Dover Zeebrugge route were reduced to 13 hours from 14. Since he worked 7 days off and 7 days on, he required 11 hours of rest per day to meet the more favourable minimum hours requirement of the 2002 Regulations . The Tribunal's Decision[20]The Tribunal recorded the cases of the parties as follows:
"8.6 It was the Respondent's case that as Master the Applicant was rostered to be in command for a 14 hour period in every Duty Period (13 hours from 7 September 2002). It was their case that two of those hours (one from 7 September 2002) did not count as hours of "work on account of the ship" and that there were three types of activity - Hours of Work, short breaks, and Hours of Rest. 8.7 It was the Applicant's case that as Master he was contracted to work on account of the ship for the full 14 hour period (13 hour period from 7 September 2002) that he was in command and that these were all Hours of Work."
The Tribunal preferred Captain Spencer's case. Its reasons were expressed as follows:
"8.8 We were not persuaded by the Respondent's arguments. It was clear to us that the agreement envisaged the Duty Period to be divided only into two separate periods -Hours of Rest or Hours of Work and that these terms are mutually exclusive. We were particularly drawn to this conclusion by the definition of Hours of Rest -"the time in a Duty Period outside Hours of Work"
. The definition of Hours of Rest was quite clear that it excluded short breaks and that short breaks were therefore part of Hours of Work. It is logical that this should be so as "short breaks" - the cup of coffee - the visit to the lavatory - the short meal break - are of the nature not readily susceptible to accurate (or recordable) timekeeping. There was no set or routine time for such breaks. It was not disputed that during any such short breaks the Applicant remained in command of the vessel and on call. There was no attempt in the Applicant's rosters to distribute working hours within a Duty Period other than by the earlier 14 hour roster in command and the later Mark 5 13 hour roster in command. 8.9 Whether before the passage of the 'Regulations when the Master was required to be in command for 14 hours or after, when he was required to be in command for 13 hours, the Respondent accepted that he was working for 12 hours. In the earlier instance that allowed two hours in the rostered period in command which the Respondent did not count as work and after the passage of the Regulations one hour. We heard no evidence from either Captain Gearing or the Applicant to suggest that either the two hour period were taken as a break at a particular time. The evidence in our finding of facts is that the Master was required to take breaks at his discretion. This we find as a fact to be "short breaks" which are specifically excluded in the agreement from the definition of Hours of Rest. 8.10 We find ourselves driven to the inescapable conclusion that before the Regulations came into force the Applicant had ten Hours of Rest and 14 Hours of Work as defined in the agreement in each Duty Period and that after the Regulations came into force the Applicant had 11 Hours of Rest and 13 Hours of Work. The Respondent only paid the Applicant for 12 Hours of Work per Duty Period. 8.11 It is therefore our unanimous decision that in the period before the Regulations came into force the Respondent made unlawful deductions from the Applicant's wages of two hours' pay in each Duty Period and after they came into force of one hour's pay in each Duty Period. 8.12 Mention was made at the hearing of the position of Masters of Oceangoing vessels. We did not consider it helpful to investigate this. Quite different considerations would apply. In particular we were dealing with a situation where there were two alternating Masters. The parties' submissions[21]On behalf of P&O Mr Roberts made the following submissions.[22]As an essential starting point to the rest of his argument he submitted that the construction of written terms and conditions was a matter of law. He made submissions as to the principles to be applied.[23]Also, as a backdrop to his submissions, he emphasised the duties of the Master to have constant concern for safety and welfare, to allocate his own time, and to take proper breaks. He referred to the provisions of Appendix B, as indicative that a Master should generally not work more than 12 hours. Any additional time would be exceptional and would have to be accounted for in time sheets.[24]Mr Roberts' primary submission on the Master's Terms and Conditions was that the rostered period beyond 12 hours was to be considered as "short breaks". He submitted that the 24 hour period could be divided into three sections – hours of work, hours of rest, and short breaks. He submitted that the Tribunal were wrong to conclude that a Duty Period must consist of just two periods - "Hours of Rest" and "Hours of Work". He submitted that a Duty Period might also include short breaks as a separate category. He placed emphasis on the word "including" in the definition of a Duty Period. He then submitted that the rostered time between 12 hours and 14 hours would not necessarily have to be paid, for time spent on short breaks did not necessarily have to be paid. He submitted that the Tribunal had wrongly assumed that time in command equated to hours of work.[25]Mr Roberts' secondary submission on the Master's Terms and Conditions was that the rostered period beyond 12 hours was to be considered as "Hours of Rest". He pointed out that in the generality of cases, where there is only one Master on a ship, he will remain in command when he is taking rest. There was, he submitted, no reason why this should not apply here. Accordingly it was, he submitted, open to Captain Spencer during his 14 hours to be entirely at rest (for instance asleep) for 2 hours. This was, it is only right to say, a secondary submission. It seems to us from a reading of the papers, including the Notice of Appearance that it was open to him to make it, though it does not seem to have been the primary submission below.[26]In his Skeleton Argument Mr Roberts took other points. He submitted that the Master's sole right, if he worked additional hours, was to time off. He disputed the application of section 13 of the Employment Rights Act 1996 to the circumstances of this case. However, in the course of the hearing, he agreed that we might approach the appeal solely on the question of the correct interpretation of the Master's Terms and Conditions. In our judgment he was right so to do. Captain Stephens had protested his right to claim for the hours during his employment; whether he entered them on a timesheet would not seem to be a critical consideration when P&O knew he was claiming them. Moreover on retirement could invoke a provision (clause 4.5) entitling him to the monetary value of an excess hours of work balance. Whether he could claim this through the ordinary civil courts or through the provisions of the 1996 Act would have been an arid question. So in the end Mr Roberts restricted his argument to the questions of law arising out of the construction of the Master's Terms and Conditions.[27]Mr Lemon, appearing on behalf of Captain Spencer, submitted that the Tribunal reached the correct conclusion for the correct reasons. He submitted that the Terms and Conditions indeed envisage that the Duty Period will be entirely divided between Hours of Rest and Hours of Work, and that any short breaks will be encompassed within Hours of Work. He submitted that a Captain's duty to be in command with "constant concern" for the safety of a busy cross-channel ferry did not permit a proper period of rest; why else have two captains? He pointed out that if the rostered hours over 12 hours had been intended to be Hours of Rest it would have been unnecessary to have reduced Captain Spencer's hours when the 2002 Regulations came into force.[28]Mr Lemon also drew attention to cases decided on the Working Time Directive : see in particular Landeshouptstadt Kiel v Jaeger (2003) IRLR 804 , holding that for the purpose of the Working Time Directive (then 93/104/EC) a period of time on call (such as a doctor in hospital) is working time. Conclusions Law, fact and construction[29]The construction of a document, such as a set of Master's Terms and Conditions, is a question of law: see Carmichael v National Power plc (2000) IRLR 46 at paragraph 27-28.[30]That is not to say that every question which arises out of the construction of a document is a pure question of law. Once the contract has been construed, it has to be applied to the facts to determine the rights of the contracting parties. If, when the contract is construed, the facts are such that there is only one permissible conclusion as to the rights of the parties, we say the case turns on a pure point of law. But sometimes even when the contract has been construed the facts are may be capable of being classified in different ways. Then we say the case turns on a mixed question of fact and law. Sometimes there is no relevant dispute as to the meaning of the contract, but only as to the facts. Then we say the case turns on the facts.[31]The Employment Appeal Tribunal has jurisdiction only in respect of questions of law. Therefore a question as to the construction of a document falls within the province of the Appeal Tribunal. Parliament has entrusted questions of fact to Tribunals. Where a case involves a pure question of construction, the Appeal Tribunal may decide it. But where a case involves a mixed question of fact and law, the Appeal Tribunal must, having construed the contract, identify an error of law in the Tribunal's decision before it intervenes.[32]In construing documents the aim is to find the meaning which the document would convey to a reasonable person having all the background knowledge reasonably available to the parties, excluding previous negotiations and declarations of subjective intent. See ICS Ltd v West Bromwich Building Society (1998) 1 WLR 896 at 912-913. The Directive[33]Before coming to the Terms and Conditions themselves, it is convenient to look at the Directive, to see how this applies to the master of a ship. It was the Directive which formed the legal matrix underlying the Master's Terms and Conditions. The 2002 Regulations came later.[34]The Directive applies to "seafarers on board every seagoing ship". The definition of "seafarer" includes any person employed in any capacity on board a seagoing ship. This includes the master of the ship.[35]A seafarer is to be provided with either maximum hours of work (which include 14 hours in any 24 hour period) or at least minimum hours of rest (which include not less than 10 hours in any 24 hour period). Short Breaks[36]The Directive defines "hours of rest" to exclude short breaks. It is not difficult to see why this must be the case. "Hours of rest" are to be divided into no more than two periods, one of which must be at least six hours in length, with intervals between them of no more than 14 hours.[37]In our judgment the Directive proceeds on the basis that short breaks are included in "hours of work".[38]We agree with the Tribunal that "short breaks" are not of their nature susceptible to accurate or recordable time keeping. We agree with the Tribunal that they include lavatory breaks, coffee breaks, short meal breaks and the like. The Directive requires that either hours of work or hours of rest will be recorded. We have seen that "short breaks" will not form part of hours of rest, which are defined periods. They will therefore be taken in the interstices of hours of work. If they do not form part of hours of work they will have to be separately recorded in order to compute hours of work. We think it inherently improbable that the Directive contemplated this.[39]That is the principal reason for our conclusion. In our judgment the definitions within clause 2 read more naturally, and fit into the scheme of the Directive more clearly, if their effect is to divide time on board into the two categories of work and rest.[40]We mention one further consideration which may be thought to point in the same direction, although we did not hear any detailed argument upon it. Clause 5 provides to Member States an option to limit seafarers' hours by imposing maximum hours of work or minimum hours of rest. The maximum hours of work in any 24 hour period are to be 14. The minimum hours of rest are to be 10. If short breaks are included within the maximum hours of work the two options are mirror images of each other. However, if short breaks are not included, the options are not equivalents.[41]Suppose that a seafarer has short breaks of 40 minutes in a day. If his working hours are defined by reference to minimum hours of rest of 10 hours in any 24 hour period, then he will be entitled to the minimum 10 hours of rest. He will also have the short breaks of 40 minutes. If, however, his working hours are defined by reference to maximum hours of work, and short breaks are not included in hours of work, he may be required to do 14 hours; his short breaks will be additional, and will limit the hours of rest available to him to less than 10. It seems to us inherently improbable that the two options were intended to produce these different results. Minimum hours of rest.[42]Most ships only have one master, who is in command and responsible for the total safety of the vessel and its cargo and all persons on board. The master is on call 24 hours per day while the ship is at sea. The Directive must therefore contemplate that he may remain in command, on call, while he takes periods of rest.[43]This is in our judgment appears from clause 5(4), though the example given is far removed from the responsibilities of a master. The seafarer is to have an adequate compensatory rest period if the normal period of rest is disturbed by call-outs to work.[44]These considerations demonstrate an essential difference between this Directive, concerned with seafarers' working time and the Working Time Directive more generally applicable in employment law (2003/88/EC, replacing 1993/104/EEC as amended by 2000/34/EC) , which contains no provision akin to clause 5(4). Cases on the treatment of employees on "call out" decided under the Working Time Directive have no application to seafarers. We did not derive any direct assistance from them.[45]It has been seen that "hours of work" in the Directive means time during which a seafarer is required to do work on account of the ship. It must follow that the Directive does not contemplate that a seafarer is "required to do work on account of the ship" merely because he is on call. Hence a Captain is not necessarily "required to do work on account of the ship" because he is in command.[46]The Directive therefore does not necessarily require all time in command to be "hour of work" or "hours of rest". The Directive is only concerned with the establishment of maximum hours of work and minimum hours of rest.[47]It will be a matter of contract between the Master and his employer to what extent time in command is to be spent at work (ie, when he is required to do work on account of the ship), and at rest (ie outside work). His contract, of course, must not stipulate hours of rest below the minimum set in the 2002 Regulations. The Master's Terms and Conditions[48]We turn, then, to the Master's Terms and Conditions. These are of course not simply or even mainly concerned with the organisation of working time. They are concerned with the Master's contract of employment more generally – in particular, his duties as a Master and his entitlement to pay and leave. But, as we have seen, they were negotiated in the light of the Directive, using similar terminology.[49]We consider firstly Mr Robert's primary submission that the rostered time over and above 12 hours constituted "short breaks" for the purposes of the Master's Terms and Conditions.[50]In our judgment the Master's Terms and Conditions neither require nor envisage that a Master should take rostered time in command beyond the period of 12 hours as short breaks outside hours of work. In our judgment they envisage that short breaks will be included in hours of work.[51]Firstly, the language of the definitions points in this direction. The definitions are plainly derived from the Directive (and, prior to that, from the ILO Convention). But if anything the definitions are clearer: thus hours of rest are the time in a Duty Period outside Hours of Work. This points, as the Tribunal thought, to a division of the Duty Period, which is 24 hours, into hours of work and hours of rest. We have already given our reasons for concluding that the Directive indeed proceeds on this basis.[52]Secondly, if a Master rostered in excess of 12 hours had to treat rostered time in command beyond the period of 12 hours as short breaks it would effectively require him to take a set amount of short breaks every day. Nothing in the Master's Terms and Conditions suggests any such obligation. In Captain Spencer's case, the result would be curious. While he was rostered for 14 hours he would have been obliged to take short breaks of two hours. Then, however, when his rostered hours reduced to 13 hours, his requirement to take short breaks would suddenly reduce by an hour. It is difficult to see any sensible rationale behind a concept of "short breaks" requiring such a result.[53]Thirdly, the point, already made, that short breaks are not of their nature susceptible to accurate recording applies with even more force to the contract than to the Directive. It would be possible, we think, for a contract of employment to define what they are, but the Master's Terms and Conditions do not. If, in order to establish the true hours of work and rest under the Master's Terms and Conditions it was necessary to keep some separate account of short breaks, it would be very difficult to achieve. But it seems to us that under the Master's Terms and Conditions this is precisely what the Master would have to do in order to comply with his duty to P&O to work at least 12 hours, and yet ensure that he also took at least 77 hours of rest (ie, an average of 11 hours per day) over the seven day period to comply with the 2002 Regulations.[54]For these reasons we reject P&O's primary submission.[55]We turn to Mr Roberts' alternative submission, namely that the rostered time over 12 hours was "hours of rest" for the purpose of the Master's Terms and Conditions.[56]If this submission were correct, it would entail two surprising conclusions.[57]Firstly, it would have been unnecessary for P&O to reduce Captain Spencer's rostered time to 13 hours in order to ensure that he complied with the 2002 Regulations, for he would already be taking time over 12 hours as hours of rest.[58]Secondly, it would follow that proper records of hours of rest have not been kept, in the light of the Tribunal's findings at paragraph 8.9 that the additional periods of one and two hours were not taken as a break at a particular time.[59]In our judgment, given the Tribunal's findings of fact as to the way in which Captain Spencer worked, set out in paragraph 5.15 and 8.9 of the Decision, it is impossible to classify the rostered hours in command over 12 hours as "hours of rest".[60]The definition of "hours of rest" in the Master's Terms and Conditions has to be read in the light of the Directive. "Hours of rest" were intended to be definite periods, capable of being written down and recorded, in which the seafarer would be off duty, though subject to being called out. It is plain that Captain Spencer did not work in this way.[61]By virtue of clause 9.2.6 P&O had a power to lay down the distribution of working hours in a work routine for the vessel. Such a routine could have required Captain Spencer to take a defined period of rest even when rostered for duty. P&O did not do so. Its rosters in fact show a continuous period of 14 and then 13 hours.[62]In these circumstances we have no doubt that the additional rostered hours, over the 12 hours, when Captain Spencer was in command were "hours of work", not "hours of rest" for the purpose of the Master's Terms and Conditions.[63]That is sufficient to dispose of this appeal, but we return finally – obiter in the light of our earlier conclusions - to the submission that Captain Spencer, even if he did work the time as hours of work, ought not to have done so by virtue of Appendix B, clause 1.1.4. We doubt whether that is correct. His roster showed him on duty for the longer number of hours. That, as it seems to us, is his work routine for the purposes of the Master's Terms and Conditions. It is the work routine which sets the distribution of working hours. Appendix B 1.1.4 sets out an expectation, but imposes no duty. The Master's duty is to have constant concern for the vessel. P&O were well aware, through the grievance which Captain Spencer raised, and no doubt also through records of hours of rest, that he was working for the whole rostered period. If they were dissatisfied they had the power to set a work routine which required him to be off work. Conclusions[64]We agree with the Tribunal that the additional rostered hours, over the 12 hours, when Captain Spencer was in command were "hours of work", not "hours of rest" for the purpose of the Master's Terms and Conditions.[65]The number of those hours is agreed. The monetary equivalent is also agreed. That sum is now payable by virtue of the Tribunal's decision and our conclusions.[66]The appeal is dismissed.