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Marine Personnel Legislation Amendment Bill 1996
Transport and Regional Development
Royal Assent except:
Item 75 of Schedule 1 which is taken to have commenced on 24 June 1993;
Item 9 of Schedule 2, which is taken to have commenced on 18 July 1994; and
Schedules will amend or repeal other acts from the dates specified.
The Bill amends the Seafarers Rehabilitation and Compensation Act 1992 (the Principal Act) and the Occupational Health and Safety (Maritime Industry) Act 1993 (the OHS(MI) Act) so as to streamline the application of those acts to seafarers injured in the course of their employment.
The issue of occupational health and safety has assumed a high profile since the 1992 Ships of Shame report and its 1995 sequel report. 1
The Principal Act provides a statutory scheme for compensating and rehabilitating seafarers who are injured during the course of their employment. In many respects it is similar to compensation regimes applicable to other Commonwealth employees. The Principal Act requires each employer to hold a suitable insurance policy and establishes the benefits payable to an incapacitated worker. Like the COMCARE legislation, the emphasis of the Principal Act is on the rehabilitation of affected workers.
The Annual Report (1995-6) of the Seafarers Safety, Rehabilitation and Compensation Authority ("the Authority") at p8 notes that the Principal Act does not apply to seafarers on ships:
"which are engaged in trade or commerce between places outside Australia ( so called cross-trading ships). A number of Australian ships, mainly oil tankers, periodically engage in cross-trading." 2
One of the aims of the Bill is to extend the application of the Principal Act to cover this situation.
The Annual Report of the Authority further states (at p15) that there has been a reduction in the number of ships in the Australian fleet in the past year (1995-96), and consequently the average number of seafarers covered by the Principal Act has fallen. The figures show that the average number of seafarers covered fell from 4,830 in 1994-95 to 4,570 during 1995-96. Of the 4,570 seafarers covered, approximately 3,900 were serving on ships that were fully covered by the Principal Act and some 670 were serving on ships that were covered by either an industrial agreement or an industrial award. The total number of claims for 1995-96 was 658, an overall increase on the 1994-95 total of 574 claims. However, it perhaps should be noted that although there was an increase in the number of claims there was a decrease in the number of claims for death or permanent impairment. 3
There is an International Labour Organization (ILO) document entitled "Code of Practice on Accident Prevention on Board Ships at Sea and in Port". The Authority has agreed in principle to adopt this code, when the code sets a higher standard than is already in place under the OHS(MI) Act. This is being done by consultation with AMSA and the maritime industry.
Seafarers Rehabilitation and Compensation Act 1992
Item 7 repeals the references in the definition of an employee to a 'company trainee' and to an 'industry trainee'. These are redundant given that the definition of a 'trainee' in section 3 already refers to both types of trainee.
Item 11 inserts new subsection 9(2A) which defines a journey to and from a place of residence so as to start it (or finish it) at the boundary of the parcel of land on which the residence is situated. If the person happens to own two separate but contiguous blocks, then they are treated as a single block and the journey starts or ends at the boundary of the 'single' block. (The Principal Act provides compensation cover in relation to journeys between an employee's place of residence and their place of work).
Item 12 extends the application of the Principal Act to employees working on a ship that travels between two places outside Australia. Previously, the ship had to be engaged in trade or commerce either within Australia or between Australia and somewhere outside Australia.
Item 14 inserts a new section 20A which will allow the Seafarers Safety, Rehabilitation and Compensation Authority (established under section 103 of the Principal Act) to exempt employees of particular ships or groups of employees from the Principal Act. Such exemption can be made subject to certain conditions (proposed subsection 20A(2)) but must be consistent with Australia's obligations under international agreements.
Item 16 repeals the existing subsection 28(6)(a) and replace it with a new subsection. The existing entitlement to claim for the costs of remaining in a location for the purposes of obtaining medical treatment will be removed. The new subsection allows a maximum claim for the costs of a journey (which is necessary in order for the injured person to obtain treatment) equal to travel from where the person resides. A similar provision is substituted for the existing paragraph 49 (6A)(a) by Item 25.
Item 17 similarly inserts a new subsection 28(6A) which restricts the amount of compensation payable in respect of a journey to that that would have been payable if the journey had been made from the employee's usual place of residence. A similar provision is substituted for the existing paragraph 49 (6B) by Item 26.
Item 29 similarly amends subsection 50(2A)(a) to limit the employer's liability to pay compensation for a journey to receive rehabilitation to the situation where the journey commences in Australia (where the employee is residing).
Item 30 limits the amount of compensation payable in respect of a journey to the amount which would have been payable if the journey had been made from the employee's usual place of residence.
Items 33-36 amend section 53 so as to omit any references to an employer being a body corporate. In particular, paragraph 53(1)(d) is amended so that the word "employer" in Part 4 of the Principal Act, relates only to persons who might own , manage, charter or operate the ship, The term 'person' includes bodies corporate as well as natural people.
Items 37-40 of the Bill amend section 66 of the Principal Act, which deals with the power of the employer to require an injured worker to undergo certain medical examinations at the employer's expense. Item 39 provides that the employer need only pay public transport expenses, ambulance services expenses or private car expenses that were reasonably incurred and provides a formula for working out the amount payable if the employee used a private motor vehicle. The available public transport, transport routes and accommodation must all be considered by the employer when considering what constitutes a reasonable expense.
The existing section 67 allows the employer to require an injured employee to provide certain information relevant to the case. Item 41 will amend section 67 to provide that where an employee can obtain 'without unreasonable expense or inconvenience' a document etc then the employer can require them to do so or can ask for a written authority to obtain the same information from the custodian of the information. Item 41 also removes the requirement for the employee to provide the requested document etc within 28 days.
Item 46 replaces the existing sections 72 and 73, which dealt with the time limits within which an employer must process a deceased worker's claim and an incapacitated worker's claim respectively (generally 60 days and 12 days respectively). The proposed alterations will extend the 60 day limit (on the application of the employer to the Authority and the Authority's approval) to include the number of days that an employee (defined to include the estate's representative) takes to produce supporting documentation requested by the employer pursuant to section 67. There is no direct reference in the proposed section 72 to allow an employee to explain why they have not provided the documentation. It could be possible that the information is not obtainable by the employee 'without unreasonable expense or inconvenience' (proposed subsection 67(1) wording). If this were to occur, there is no obligation on the employee under proposed subsection 67(1) to so obtain the information and yet there is no method of informing the Authority of this (other than relying upon the employer to inform them) during the period that the Authority is considering whether to extend the 60 day time limit. It is conceivable that this could be used as a stalling tactic by unscrupulous employers.
Proposed section 73 extends the scope of the existing section to include not only non-fatal injuries to employees but also to the lost or damaged property of the employee and to the cost of medical treatment. As with proposed section 72, the time limit within which an employer must determine the claim may be extended to equal the extent of the delay in the employee providing requested documentation.
Proposed section 73A is similar in its terms to the above two proposed sections, but deals with the time limit for an employer determining a claim for permanent impairment (generally 30 days).
Item 55 replaces existing section 79 with a new provision which extends the time within which an employer must determine an employee's request for a reconsideration. The existing section requires that it be done within 35 days after the employer receives the request. The proposed section essentially changes this to 60 days or such other period as the Authority may allow. Reasons for an extension include the fact that an employee has failed to provide information that they would be able to provide and the fact that the employer requires the employee to undergo certain further medical examinations (see item 62).
Item 56 preserves the application of the existing provisions to requests for reconsideration made prior to the proposed provisions taking effect.
Items 59 and 60 deal with the situation where an employer gives written notice to the claimant that they require certain information or documentation. Item 60 deems the claimant to have complied with the employer's notice if they have provided all the information requested in the notice.
Item 62 inserts a new provision which will allow an employer, considering a request for reconsideration of a determination, to require the claimant to submit to certain medical examinations. Previously, the employer was only able to do this with the initial application for compensation and not when a claimant had submitted a request for a reconsideration of a determination. The employer may nominate the legally qualified medical practitioner but must pay for the examination and any associated transport costs that are reasonably incurred. The employer may require the claimant to hand over the medical report, although if the claimant refuses to do so, proposed subsection 83A(10) allows the employer to refuse to reconsider the determination until the medical report is received.
Item 65 adds new subsection 90(3) which makes the report of a medical practitioner (procured under subsection 83A) inadmissible without the leave of the AAT in circumstances where the claimant failed to provide the employer with a copy of the report prior to the employer determining the claim. Item 66 amends existing paragraph 91(3)(b) so that, when considering the issue of costs, the AAT may exempt those costs that result from the claimant failing to disclose a medical report to the employer.
Item 71 amends subsection 92(6) to include a District Registrar in the list of people who may tax a bill of costs in the AAT. District Registrars are already listed in the Administrative Appeals Tribunal Act 1975 as being able to tax bills of costs. The taxation of a bill of costs is a procedure in most courts and tribunals for assessing the reasonableness of a party's legal costs. The party files a bill of costs claiming every item of work done. The District Registrar (or Registrar etc) then goes through each item claimed and decides whether it should be allowed in full, reduced or not allowed. At the end of this process, a final figure for "costs" is reached and a certificate of taxation can be signed by the District Registrar.
Item 72 deems an employer to be a party to the proceedings when they are ordered to pay the costs of the proceedings.
Existing paragraph 93(1)(b) of the Principal Act sets out that employers must have insurance from authorised insurers or from approved 'protection and indemnity associations'. Item 73 expands the options available by allowing an employer to be a member of an employers' mutual indemnity association that has been approved by the Authority.
Item 75 exempts such insurance contracts from any stamp duty or other tax imposed by a State or Territory.
Item 83 allows a delegate of the Chief Executive Officer of the Australian Maritime Safety Authority to be one of the members of the Authority.
Item 91 replaces subsection 126(1) with a provision that enables an employer determining a claim to give a written notice to the claimant asking them for either the name and address of previous employers or an authority to obtain that information.
Items 94-96 repeal existing section 138 (which prevents a claimant from 'double-dipping' ) and introduce section 139A which also has the effect of preventing a claimant from double-dipping. The new provision achieves this by excluding the operation of the State or Territory compensation law to the extent that it covers the same claim covered by the Principal Act.
Item 98 includes the written notices of the Minister in the class of disallowable instruments set out in section 46A of the Acts Interpretation Act 1901. These written notices include, for example, the Ministerial notice establishing how frequently an employer can require an employee to attend a medical examination and the specified rate to be paid per kilometre travelled in a private motor vehicle.
Schedule 2 - Amendment of the OHS(MI) Act
Item 1 amends the definition of accident in the OHS(MI) Act to remove the reference to 'contracting a disease'.
Item 2 simplifies the definition of 'operator' and will make it easier to show that someone was the operator of a prescribed ship or unit.
Item 3 will amend the definition of 'prescribed ship' so as not to specifically include an off-shore industry vessel or a trading ship declared respectively under section 8A or 8AA of the Navigation Act 1912. Sections 8A and 8AA enable the owner of the particular off-shore industry vessel or a trading ship to apply to the Authority for a declaration that the Navigation Act 1912 will apply to their vessel. If the owner makes such an application (and the Authority makes such a declaration) then the vessel is already covered and so the proposed amendment will not affect them.
Item 8 will amend subsection 109(1) to allow not just the Authority but 'any other body' to prepare a code of practice that the Minister may approve.
Item 9 amends section 121 to allow the Governor-General to make regulations imposing penalties for the contravention of the regulations, provided that they do not impose a penalty greater than 10 penalty units. One penalty unit is currently $100.
Report of the House of Representatives Standing Committee on Transport, Communications and Infrastructure (December 1992), Ships of Shame. The November 1995 report of the House of Representatives Standing Committee on Transport, Communications and Infrastructure was entitled Ships of Shame - A Sequel.
2 p8 Annual Report 1995-96, Seafarers Safety, Rehabilitation and Compensation Authority.
3 Ibid p15