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- Start of Business
- NAVIGATION AMENDMENT (EMPLOYMENT OF SEAFARERS) BILL 1998
- STATES GRANTS (PRIMARY AND SECONDARY EDUCATION ASSISTANCE) AMENDMENT BILL 1998
- SOCIAL SECURITY AND VETERANS' AFFAIRS LEGISLATION AMENDMENT (PAYMENT PROCESSING) BILL 1998
- STATES GRANTS (GENERAL PURPOSES) AMENDMENT BILL 1998
- FISHERIES LEGISLATION AMENDMENT BILL (No. 1) 1998
- HUMAN RIGHTS LEGISLATION AMENDMENT BILL (No. 2) 1998
- FLOOD DAMAGE
QUESTIONS WITHOUT NOTICE
(Beazley, Kim, MP, Howard, John, MP)
Flood Damage: Financial Assistance
(Broadbent, Russell, MP, Fahey, John, MP)
(Beazley, Kim, MP, Howard, John, MP)
Tough on Drugs Strategy
(Wakelin, Barry, MP, Howard, John, MP)
(Brereton, Laurie, MP, Howard, John, MP)
Export Market Development Grants Scheme
(Neville, Paul, MP, Fischer, Tim, MP)
(Holding, Clyde, MP, Howard, John, MP)
(Jeanes, Susan, MP, Costello, Peter, MP)
(Lee, Michael, MP, Howard, John, MP)
Educational Opportunities for Young People in Regional Australia
(Lieberman, Lou, MP, Kemp, Dr David, MP)
Australian Youth Policy and Action Coalition
(Latham, Mark, MP, Kemp, Dr David, MP)
(Lloyd, Jim, MP, Costello, Peter, MP)
- One Nation
- DISTINGUISHED VISITORS
QUESTIONS WITHOUT NOTICE
Goods and Services Tax
(Evans, Gareth, MP, Costello, Peter, MP)
(Evans, Richard, MP, Reith, Peter, MP)
Capital Gains Tax
(Rocher, Allan, MP, Costello, Peter, MP)
(Draper, Trish, MP, Kemp, Dr David, MP)
Goods and Services Tax
(Evans, Gareth, MP, Costello, Peter, MP)
(Nugent, Peter, MP, Downer, Alexander, MP)
- Goods and Services Tax
- QUESTIONS WITHOUT NOTICE: ADDITIONAL RESPONSES
- HOLDING, MR CLYDE
- PERSONAL EXPLANATIONS
- AUDITOR-GENERAL'S REPORTS
- MATTERS OF PUBLIC IMPORTANCE
- NATIONAL CAPITAL AUTHORITY
- ASSENT TO BILLS
- MANAGED INVESTMENTS BILL 1997
- COMPANY LAW REVIEW BILL 1997
- HUMAN RIGHTS LEGISLATION AMENDMENT BILL (No. 2) 1998
- Work for the Dole
- Duthie, Mr William Arthur, AM
- Shoalhaven: Dialysis Facilities
- Goods and Services Tax
- Pharmaceutical Benefits Scheme
- One Nation Party
- Ministerial Reply
- Ministerial Reply
- Start of Business
- STATEMENTS BY MEMBERS
Thursday, 25 June 1998
Mr REITH (Workplace Relations and Small Business) (9:31 AM) —I move:
That the bill be now read a second time.
The government is revising the Navigation Act 1912 to bring it up to date and into line with practices that are relevant to the operation of a modern and efficient shipping industry. This is being done in two stages. Stage one, which is to be implemented through the Navigation Amendment (Employment of Seafarers) Bill 1998 now before the House, is aimed at removing employment related provisions in the act, which are inconsistent with the Workplace Relations Act 1996 and the concept of company employment. Stage two will involve a comprehensive rewrite of the act to make it a more efficient and effective regulatory tool.
The Navigation Act has its origins in the British Merchant Shipping Act 1894. The employment related provisions were originally intended to cover situations where the majority of the crew of a ship were employed on a casual basis, with crew contracted to serve on a particular ship for a particular voyage. At the end of the voyage, the crew was paid off, with the employer having no further commitment regarding the employment of individual crew members. With the shift to company employment, a number of provisions in the Navigation Act are no longer relevant.
There are a number of provisions still contained in the Navigation Act that are more in tune with ships under sail. For example, one of the sections in the act provides that the `receiver of wreck', who is a government official, may for the purpose of protecting a ship that has been wrecked use force, including shooting, for the suppression of plundering, disorder or obstruction and may command all persons present to assist him in so doing. If this results in people being killed, the receiver of wreck is not liable to any punishment or to pay any damages.
Another example of an outdated provision is one contained in section 50 which grants seamen who have to spend some time ashore awaiting passage to their home port an entitlement of at least of two dollars per day for victualling and accommodation. Seafarers could well have legitimate grounds for complaint if a shipowner were only to pay this minimum amount. It is hard to imagine why provisions of this kind should remain in the Navigation Act. In fact, with the Workplace Relations Act now in force, there is no need for these archaic and inappropriate employment provisions to be covered in an act that is principally intended to regulate maritime safety and control ship sourced pollution.
The Workplace Relations Act was introduced for the specific purpose of giving employers and their employees a new opportunity to make employment arrangements best suited to the needs of their enterprises or workplaces. That act is based on principles which support more direct and productive workplace relations and opens the way for more flexible working arrangements suited to the changing ways Australians are working. The main difference between the Navigation Act and the Workplace Relations Act is that the Navigation Act is highly prescriptive and applies industry wide whereas the Workplace Relations Act provides flexibility for employment arrangements to be determined at the enterprise level in a manner that suits the business of individual employers.
Examples of the over-prescriptive employment conditions in the act which are no longer appropriate include:
. over 30 separate provisions prescribing details of how seafarers are to be engaged and discharged from individual ships;
. over 35 provisions prescribing how wages are to be paid to seafarers;
. and an industry wide arrangement, through the Marine Council, for assessing the suitability of seafarers for employment in the industry.
With this in mind, the main objectives of the stage one amendments contained in this bill are to remove outdated and inappropriate legislative requirements and, as far as practicable, bring legislation applying to seafarers into line with that applying to employees in other industries. The situation today is that masters and ships' officers are engaged under company employment arrangements. Moves are in hand to bring other seafarers under similar arrangements.
There is no doubt that both shipping and the legislation under which it operates are much in need of reform. The key element of the government's policy to reform the Australian shipping industry is the introduction of company employment for all seafarers. This was a major recommendation in the 1997 report by the Shipping Reform Group entitled A framework for reform of Australian shipping. Under company employment, the terms and conditions applying to seafarers are matters for negotiation between the seafarers and their employers. Legislative backing for such arrangements, which can be tailored to the needs of individual companies, can be obtained through the Workplace Relations Act.
Not only are most of the current highly prescriptive employment provisions in the Navigation Act unnecessary but they are also inimical to the development of productive and trusting working relationships between seafarers and their employers. The Shipping Reform Group's report states that the positive outcomes from introducing company employment include improved relations between employer and employee, the forging of an enterprise culture and outcomes, the more efficient introduction of quality management systems and the more effective planning of crew requirements.
As a result of the impetus provided by the Commonwealth's withdrawal of the Australian Maritime Safety Authority from the pooled labour system known as the seafarers engagement system, the industry has almost com pleted its transition to company employment for all seafarers. While there still seems to be some reluctance on the part of the Maritime Union of Australia to take this first step of the reform process, company employment will, to all intents and purposes, be in place from 1 July 1998.
While company employment is a worthwhile step in the reform process, much more needs to be done to make Australian crewed vessels competitive. The current cost disadvantage suffered by Australian crewed vessels must be reduced through measures such as those recommended by the Shipping Reform Group. It is important for both employers and unions to come to an agreement to achieve the necessary savings. For the Commonwealth's part, we will need to be satisfied that any reforms, including genuine company employment, are real, measurable and in place before considering any of the `reform linked equity measures' suggested by the Shipping Reform Group. I make it clear that we make no commitment to any such measures prior to the entering into of any genuine arrangements by the parties.
I look forward to having an opportunity to discuss these issues with industry in the near future to assess progress against these criteria. It will be very much in the interests of Australian shipowners and seafarers to cooperate fully in achieving the objective of an efficient and competitive industry as the survival of Australian shipping will depend on it.
In line with the aim of removing provisions in the Navigation Act that are inconsistent with company employment, the bill repeals about 50 sections and subsections in the act containing detailed employment related provisions. In addition, there are a number of other consequential amendments in the bill which are required as a result of the provisions to be repealed and the need to broaden the concept of an employment agreement so as to provide the flexibility allowed for under the Workplace Relations Act.
The major amendments in the bill will abolish the Marine Council and its functions, and will also remove provisions dealing with prohibition on demanding or receiving fees for the supply of seamen; prohibition on using the crew of a ship engaged in overseas voyages for handling cargo or ballast while the ship is in an Australian port; requirements to enter into a prescribed form of `articles of agreement' covering conditions of employment; and certain procedures for the discharge of seamen from service on a ship and methods for paying their wages.
The Marine Council comprises an employee of the Australian Maritime Safety Authority, and representatives of shipowners and seafarers. The council has previously dealt mainly with issues concerning the suitability of seamen for employment at sea and whether there is just cause to suspend a seaman from employment on ships. For example, the council may be called upon to consider what to do about seamen who report late for work. Under company employment it is the responsibility of the employer to deal with these matters and there is no need for a government appointed body to perform such tasks. Accordingly, the bill provides for the repeal of sections 47, 48, 138 and 424.
At present section 32 of the act prohibits demanding or receiving fees for the supply of seamen. This provision originally came from the British Merchant Shipping Act of 1894 and was intended to prohibit demanding payment from seamen for finding them jobs. This practice was generally known as crimping. However, the wording in section 32 goes much wider than prohibiting crimping. In fact, it could be interpreted as referring to any commercial business activity involved in recruiting seafarers for shipping companies.
At present there are many ship management and crewing agents around the world that specialise in managing crewing matters, including supplying seamen, on behalf of shipowners and charge them for such services. Given this situation and the normal employment practices in Australia, section 32 is no longer appropriate and the bill provides for its repeal.
The question of what limits should be placed on the work to be carried out by a ship's crew is a matter that should be determined by negotiation between employers and their seagoing employees. While as a general rule shore side stevedores carry out the loading and unloading of ships, there can be circumstances where it may be quite appropriate for the crew to handle goods that could fall under the broad description of cargo. Examples include the cleaning of holds, where the crew would need to handle residues of cargo and the loading of ships' stores. In any event, it is no longer appropriate for restrictions of this sort to be in the Navigation Act and the bill provides for the repeal of section 45 of the act dealing with this matter.
Articles of agreement are in effect a contract of employment between the master of a ship, on behalf of the employer, and each member of the crew. The Navigation Act prescribes in great detail the procedures and content of articles of agreement. As such, this aspect of the act is inconsistent with the aims of the Workplace Relations Act which are to give employers and employees a high degree of flexibility in making employment arrangements best suited to their needs.
Articles of agreement are provided for in ILO Convention 22, which dates back to 1926 when most seafarers were employed on a casual basis and the articles were the only legal instrument available to protect the interests of seafarers. Given the moves in Australia to company employment and the aims of the Workplace Relations Act, it is quite appropriate for Australia and other parties to that convention to interpret it in a manner consistent with its own present day employment legislation.
The present narrow definition of `agreement', which only covers the traditional articles of agreement in section 6 of the Navigation Act, needs to be broadened to cover any form of agreement including certified agreements and Australian workplace agreements under the Workplace Relations Act. The bill provides for this as mentioned under items 1, 2, and 5 of the explanatory memorandum. The bill also provides for the replacement of the highly prescriptive provisions covering the form of agreement for seafarers with a much simplified requirement. A new and more flexible definition of an agreement is provided under a new subsection 6(8).
While the bill removes the prescriptive elements covering articles of agreement, it still leaves a requirement in section 46 of the Navigation Act that a ship shall not be taken to sea unless the employer has entered into an agreement with the master and seamen. The details of such an agreement will be matters for negotiation between the parties concerned. Section 50 of the Navigation Act places a six-month limitation on the duration of a seafarer's engagement under the existing articles of agreement system, and includes requirements concerning a shipowner's obligations to pay the cost of returning a seafarer to his or her agreed return port. Again, these are matters that should be dealt with by negotiations between employers and their seagoing employees and it is not appropriate to have them prescribed in the Navigation Act.
Legislative backing for agreements covering seafarers can be obtained through the Workplace Relations Act. In line with the revised approach to the employment of seafarers, the bill substitutes a redrafted section 46, and provides for the repeal of sections 46(2), (2A), (4), 4(A), 50, 53, 54, 55, 56 and 57.
The bill amends section 52 by removing the requirement for the employer to notify the Australian Maritime Safety Authority of changes of crew on a ship. However, for safety purposes section 52 will retain the requirement that owners and/or masters must provide AMSA with details of the crew on a ship when requested by AMSA. This information could be needed to assist in dealing with an emergency situation on a ship or assessing if a ship is adequately crewed.
Division 9 contains very detailed requirements covering procedures for discharging a seaman from serving on a ship. These procedures include a requirement for the master of a ship to issue seamen with certificates of discharge. This process is associated with ending a seafarer's employment agreement under articles of agreement, which will no longer be mandatory. These procedures are no longer appropriate to company employment arrangements and the bill provides for the repeal of all the sections in division 9 of part II of the act.
In future it is intended that the employer will be required to provide, on request, to a master or seaman who is employed or has been employed by that employer, a statement of service containing prescribed information relating to that employment. That record is for the purposes of calculating service to meet the requirements of the International Maritime Organisation's Convention on Standards of Training Certification and Watchkeeping (STCW). This requirement can be provided for under marine orders made pursuant to section 15 of the act.
Division 10 contains another very detailed set of provisions covering how wages are to be paid to seafarers. One such provision is contained in section 70, under which a seaman has the right to have up to three-fourths of his or her wages paid to a grandparent, parent, wife, husband, brother, sister, child, or grandchild.
The bill also repeals other provisions in division 10 prescribing matters concerning the payment of wages to seafarers. This amendment removes provisions associated with employment under articles of agreement covering service on a particular ship for a particular voyage. As articles of agreement will no longer be mandatory, it is not appropriate to retain these provisions.
The sections in division 10 to be repealed deal with:
. allotment of a proportion of a seamen's wages to a nominated party or parties;
. right to sue upon allotment notes;
. commencement of payment of allotments;
. allotment to banks;
. payment of wages upon discharge;
. computation of wages;
. account of wages on discharge;
. time for payment of wages;
. wages to run on in certain cases;
. reference of differences to a superintendent; and
. commencement of right to wages.
In addition, section 84 provides that wages shall not be dependent on the earning of freight. This is another irrelevant and outdated provision to be repealed under the bill.
I understand that nowadays these provisions are seldom if ever used and there is no need to retain them in the Navigation Act. Clearly, arrangements for paying wages to seafarers are matters that can and should be covered under company employment agreements. Also the entitlement to, and payment of, wages for seamen will be subject to the types of laws, awards and agreements which apply to other industries in Australia.
Sections 83, 85, 91 and 94, which deal with the rights of masters and seamen in respect of claims for wages and repatriation to their home port if the ship on which they are serving is lost or wrecked, or the owner or operator goes bankrupt during a voyage, are to be retained. However, the need to keep these provisions in the Navigation Act will be further examined during the stage 2 review of the act.
Other provisions related to wages are contained in sections 132 and 132B concerning sick leave. These are matters that should be covered under company employment arrangements rather than being prescribed in the Navigation Act. Accordingly, these sections are to be repealed.
Under section 132 a seafarer who is left onshore due to illness during a voyage is entitled to a maximum of three months paid sick leave. This is an entitlement that applies on each occasion that a seafarer falls sick during a voyage. The current award covering seafarers picks up this provision by stating that section 132 of the Navigation Act applies under the award.
Sick leave is one of the 20 allowable matters under the Workplace Relations Act and is clearly a matter which should be dealt with through negotiations between employers and employees. It is certainly not a matter that should be prescribed in the Navigation Act.
Another provision in the Navigation Act related to seafarers who fall sick is section 132B, which requires seafarers who are left on shore to furnish an address and/or report to a doctor for a medical examination. There is no need for such a detailed matter to be prescribed in the Navigation Act, and in any event this could be covered in employment arrangements between employers and their seagoing employees.
Sections 148C and 148D prescribe what is to be done about the wages and effects of seamen left behind at a port during a voyage. This is yet another example of employment issues that should be dealt with under company employment or other arrangements covered under the Workplace Relations Act. Accordingly, the bill provides for the repeal of these sections.
Other significant amendments
Given the move to company employment, there are several other provisions in the Navigation Act that are no longer appropriate and the bill provides for their repeal. Probably one of the most pedantic and unnecessary provisions in the act is the one that requires that the crew of a ship licensed to engage in the coasting trade be given access to a ship's library.
There are other provisions in the Navigation Act which are based on the assumption that seafarers have to be formally discharged from a particular ship at the end of their tour of service. However, under company employment such a process will not be necessary or appropriate, as the employment of seafarers belonging to a company will be continuous and could cover service on more than one ship operated by that company.
Other provisions in the act ascribe certain functions such as the resolution of disputes and discipline to the Australian Maritime Safety Authority. AMSA will no longer be undertaking these functions as they are matters that should be handled by the employer. This of course is common practice in other industries in Australia.
The bill provides for the repeal of these and other provisions covering matters such as determinations by a government official of the home port to which a seaman is entitled to be returned after completing service on a ship, and reports to the Australian Maritime Safety Authority concerning the code of conduct applying to seafarers.
Paragraphs 377C (d), (e) and (f) in the Navigation Act allow for reviews by the Administrative Appeals Tribunal of employment arrangements covered in legislative provisions to be repealed under the bill. Therefore, these paragraphs need to be repealed. They concern applications for review of a decision to:
. refuse to approve an agreement under subsection 46(2A);
. determine that a person is unsuitable for engagement as a seafarer under subsection 47(1) or revoke such a determination under subsection 47(2);
. disallow or refuse to disallow a deduction under subsection 76(4); and
. refuse to waive, under subsection 76(5), requirements that ship masters keep appropriate records of deductions.
As a concluding observation, it is interesting to note that a textbook on shipping law written by two British barristers has noted that no other body of workers, except perhaps children, has been given the same protected position as seamen. While conditions in the shipping industry 100 years ago might have justified the detailed employment provisions that have found their way into the Navigation Act, this is not the case today when Australian seafarers enjoy exceptionally good working conditions. There can be no doubt that legislation covering Australian seafarers needs to be greatly simplified and brought into line with that applying to other industries in this country.
As I conclude I note that, as this bill is being introduced, the waterfront dispute is now coming to an end as workers for the Patrick organisation on the Australian waterfront vote to support an agreement which will see very significant improvements in the productivity of Australian ports. In fact, by voting for the agreement, they are voting for Australia to have internationally competitive crane rates, thereby bringing Australia into line with its international competitors and bringing about the prospect that for the Australian economy as a whole, living standards could be increased by $1,000 million per annum, with the creation of an extra 4,000 jobs Australia-wide. These are very significant reforms.
In the legislation that I have introduced, we are in fact removing a lot of prescription in the existing legislation. This is another mark of the government's determination to remove unnecessary prescription and also to remove a lot of unnecessary red tape. That has been a feature of this government's administration in our two years in office.
The introduction of this legislation is yet another sign that the government's determination to reform this and other industries is a continuing one, and I therefore commend this legislation to the House. It represents a significant reform in itself, not for the new measures it is introducing, but it is a particularly good piece of legislation because in this legislation we do not introduce new laws, we repeal a whole lot of outdated and archaic laws. I would hope that in the future many more pieces of legislation can be introduced which do not introduce more laws but instead get rid of laws which today are in the way of jobs and creating wealth in the Australian economy. I commend the bill to the House and present the explanatory memorandum.
Debate (on motion by Mr Laurie Ferguson) adjourned.