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Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015

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2013-2014-2015

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

SEAFARERS REHABILITATION AND COMPENSATION AND OTHER LEGISLATION AMENDMENT BILL 2015

 

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Senator the Honourable Eric Abetz)

 

 

 

 

 

 

 

 



SEAFARERS REHABILITATION AND COMPENSATION AND OTHER LEGISLATION AMENDMENT BILL 2015

OUTLINE

The Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 (the Bill) will amend the Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act) and the Occupational Health and Safety (Maritime Industry) Act 1993 (the OHS(MI) Act) to clarify the coverage of these Acts.

 

The Seafarers Act provides workers’ compensation and rehabilitation arrangements for seafarers in the Australian maritime industry. The Seafarers Act establishes a privately underwritten workers’ compensation scheme, with employers covered by the Act required to maintain an insurance policy to cover claims under the Act. The Seafarers Act also establishes the Seafarers Safety, Rehabilitation and Compensation Authority (the Seacare Authority), which oversees the scheme.

 

The Seafarers Act operates in conjunction with the OHS(MI) Act, which regulates work health and safety for a defined part of the Australian maritime industry. The OHS(MI) Act is co-regulated by the Seacare Authority and the Australian Maritime Safety Authority (AMSA), with AMSA being the inspectorate responsible for enforcing the OHS(MI) Act.

 

The Bill amends the coverage provisions of the Seacare scheme to clarify that the scheme is not intended to apply to employees engaged on ships undertaking intrastate voyages who have the benefit of State and Territory workers’ compensation schemes and work health and safety regulation. These amendments are made in response to the Federal Court decision in Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 which interpreted the coverage of the Seafarers Act as being beyond what it had widely been understood to be. The amendments are also intended to address the original Administrative Appeals Tribunal decision of Aucote and Samson Maritime Pty Ltd [2014] AATA 296 in relation to the scope of subsection 19(1).

 

The amendments in the Bill will:

 

·                     repeal provisions that apply the Seacare scheme to any employees who are employed by a trading, financial or foreign corporation, in order to ensure that coverage of the scheme is tied to whether a ship is engaged in interstate or international trade and commerce, as it was understood to be

·                     provide that the Seacare scheme applies to the employment of employees on a prescribed ship that is ‘directly and substantially’ engaged in interstate or international trade or commerce. This amendment is intended to make clear that the activity of the ship must be more than merely incidental or preparatory to interstate or international trade or commerce; for a ship to be covered by the Seacare scheme there must be a direct and substantial connection

·                     make technical amendments to ensure that where an employee’s employment is not covered by the Seacare scheme (and so is instead covered by equivalent state legislation), their employer will not be liable for a levy in respect of that employee.

The Bill will commence in part on the day after the Act receives the Royal Assent. The amendments to the coverage of the Seafarers Act (Part 1 of Schedule 1) will commence immediately after the commencement of Part 2 of the Seafarers Act(that is, 24 June 1993) and the amendments to the OHS(MI) Act (Part 2 of Schedule 1) will commence immediately after the commencement of section 6 of the OHS(MI) Act (that is, 18 July 1994). The retrospective commencement of the coverage provisions is necessary to return the operation of the Seacare scheme to what it has always been understood to be.



Financial Impact Statement

Nil.



Regulation  Impact Statement

Nil.



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015

The Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act) provides workers’ compensation and rehabilitation arrangements for seafarers in a defined part of the Australian maritime industry. The Seafarers Act establishes a privately underwritten workers’ compensation scheme, with employers covered by the Act required to maintain an insurance policy with an approved insurer to cover workers’ compensation claims made under the Act. The Seafarers Act establishes the Seafarers Safety, Rehabilitation and Compensation Authority (the Seacare Authority), which oversees the scheme.

The Seafarers Act operates in conjunction with the Occupational Health and Safety (Maritime Industry) Act 1993 (the OHS(MI) Act), which regulates work health and safety for a defined part of the Australian maritime industry. The OHS(MI) Act is co-regulated by the Seacare Authority and the Australian Maritime Safety Authority (AMSA), with AMSA being the inspectorate responsible for enforcing the OHS(MI) Act.

The Seafarers Act and OHS(MI) Act are collectively referred to as the ‘Seacare scheme’.

Since the current Seacare scheme commenced in 1993, regulators and maritime industry participants have operated on the basis that coverage of the Seacare scheme was determined primarily by reference to the nature of the voyage in which a ship was engaged. In particular, ships engaged in trade or commerce:

·          between Australia and places outside Australia;

·          between places outside Australia;

·          among the States; or

·          within a Territory, between a State and Territory; or

·           between two Territories;

were understood to be covered by the Seacare scheme. This is consistent with the coverage of the Seamens Compensation Act 1911 , which preceded the Seafarers Act. Ships engaged in intra-state trade have been assumed to be outside the scheme and covered by the relevant workers’ compensation and work health and safety legislation of the state in which they work.

In Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 (the Aucote decision), a Full Court of the Federal Court held that the coverage provisions in the Seafarers Act also operate to extend its application to all seafarers employed by a trading, financial or foreign corporation (‘constitutional corporations’), including those on ships engaged in purely intra-state trade. Based on the Aucote decision, the Seafarers Act—and potentially the OHS(MI) Act, which has very similar coverage provisions—has a much broader application than has previously been understood by regulators, maritime industry employers and maritime unions.

The Bill amends the coverage provisions of the Seafarers Act and the OHS(MI) Act, so that the coverage of the two Acts will align with how the Seacare scheme had previously been understood to apply. The amended coverage provisions will clearly provide that the Seafarers Act and the OHS(MI) Act do not apply to intra-state voyages. Consistent with the understanding that applied before the Federal Court decision, seafarers not covered by the Seafarers Act will be covered by the relevant workers’ compensation and work health and safety legislation of the state in which they work.

In light of the Aucote decision, the Seafarers Act and, potentially, the OHS(MI) Act have applied to employees of constitutional corporations on intra-state voyages since their commencement in 1993 and 1994, respectively. In order to ensure that the actual coverage of the Seacare scheme aligns with the shared understanding that regulators and industry participants have been operating under during this time, the amendments to the coverage provisions of the Acts will have retrospective effect from dates the Acts commenced.

The Bill also makes amendments to the Seafarers Act to ensure that when the Seacare Authority grants an exemption from the Act in relation to the employment of employees on a ship, the relevant employer is also exempt from paying a levy under the Safety Rehabilitation and Compensation Levy Collection Act 1992 in relation to the employees who have been exempted from the coverage of the Seafarers Act. These amendments to the Seafarers Act are technical in nature and do not raise any human rights implications.

Human rights implications

The Bill engages the following rights and prohibitions:

·                      The right to social security, under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

·                      The right to work, under Article 6 of ICESCR, and the rights of persons with disabilities to rehabilitation and to work and employment, under Articles 26 and 27 of the Convention on the Rights of Persons with Disabilities (CRPD).

·                      The right to safe and healthy working conditions, under Article 7 of ICESCR.

·                      The prohibition on retrospective criminal laws, under Article 15 of the International Covenant on Civil and Political Rights (ICCPR).

Rights to social security and to work and rehabilitation

Article 9 of ICESCR states that ‘States Parties … recognize the right of everyone to social security’. General Comment 19 by the Committee on Economic, Social and Cultural Rights sets out the essential elements of the right to social security, including that ‘States parties should … ensure the protection of workers who are injured in the course of employment or other productive work’. [1]

General Comment 19 also notes that the right to social security has a close relationship with the aspects of the right to work which require States Parties to provide social services for the rehabilitation of the injured and persons with disabilities. [2] As such, the Bill’s interaction with the right to social security and the right to work, particularly the rights of persons with disabilities to rehabilitation and to work and employment, are best discussed together.

The Seafarers Act provides support for seafarers who have been injured at work by way of compensation payments, payment of medical expenses, permanent impairment benefits and other benefits, such as access to rehabilitation support. The Seafarers Act is part of a broader system of (primarily state) legislation which ensures all Australian employees have access to workers’ compensation when injured at work. Workers’ compensation represents just one avenue of social security that is available to injured employees and, where an injury is not covered by workers’ compensation legislation, other safety nets exist to meet medical and living costs.

The amendments in the Bill will alter the coverage of persons who may be eligible for workers’ compensation entitlements under the Seafarers Act, in order to align the coverage of the Act with the shared understanding of scheme participants prior to the Aucote decision. A consequence of these changes is that some individuals who may have entitlements to workers’ compensation under the Seafarers Act following the Aucote decision will no longer have an entitlement to compensation under that Act. These changes to coverage could be said to limit the right to social security. Any such limitations are, however, reasonable and proportionate, as affected employees will retain entitlements to compensation and any limitations are necessary to achieve the legitimate objective of ensuring the long-term viability of maritime industry employers and sustainability of the Seacare scheme.

By aligning the coverage of the Seafarers Act with the shared understanding of scheme participants, employees on purely intra-state voyages will no longer be covered by the Seafarers Act. These employees will continue to be covered by the workers’ compensation legislation of the state in which they work — as they had been understood to be, prior to the Aucote decision. While the precise quantum of entitlements available under each scheme varies, every workers’ compensation scheme in Australia provides protection and support to injured employees, as required by the right to social security. Further, the change to the rights of these employees to workers’ compensation will align their actual rights with those which they had been understood to have had prior to the Aucote decision. As such, any limitation to the right to social security which results from this change would be reasonable and proportionate.

Any limitations to the right to social security are necessary to achieve the legitimate objective of ensuring the long-term viability of maritime industry employers and sustainability of the Seacare scheme. As noted by General Comment 19, an important aspect of the right to social security is ensuring that schemes are sustainable, ‘in order to ensure that the right can be realized for present and future generations’. [3]

The workers’ compensation scheme established by the Seafarers Act is privately underwritten, with employers purchasing insurance policies from approved insurers under the terms of the Act. Prior to the Aucote decision, the shared understanding of regulators, maritime industry employers and employees was that the coverage of the Seafarers Act did not extend to intra-state voyages. Employers who had acted on the basis that they were not covered by the Seafarers Act will not have insurance policies under the Act, and will have instead paid insurance premiums (or purchased insurance policies) under the workers compensation laws of the state in which they operated. Workers’ compensation premiums under the Seacare scheme are, on average, significantly more expensive than those of state and territory workers’ compensation schemes.

The coverage changes protect the long-term viability of maritime industry employers and the long-term sustainability of the scheme. Without the changes, the viability of maritime industry employers would be jeopardised because employers may be exposed to workers’ compensation claims under the Seafarers Act for which they are not insured, because they did not know that they were covered by the Act. The financial viability of employers in the maritime industry is vital to promoting and protecting the right to work for their employees. The financial sustainability of the scheme and availability of affordable workers’ compensation insurance would be jeopardised if the Seacare scheme were to operate with such an expanded application.

A centralised fund, known as the Safety Net Fund, is also managed by the Commonwealth and exists to cover claims where an employer has become insolvent or is otherwise unable to pay a claim. The Safety Net Fund is maintained through levies on Seacare scheme employers. The sustainability of the Safety Net Fund would be jeopardised without any changes because of an increase in the number of calls on the Fund, in many cases from employees for whom levies have never been paid, that exceed the reserves held in the Fund.

Right to safe and healthy working conditions

The right to safe and healthy working conditions is part of the set of interdependent rights relating to work and conditions of work set out in articles 6, 7 and 8 of ICESCR. Article 7(b) of ICESCR requires States Parties to recognise the right of everyone to safe and healthy working conditions.

Australia principally complies with this obligation through a system of state and Commonwealth work health and safety laws, which have been harmonised across the majority of jurisdictions through the adoption of model laws. The OHS(MI) Act provides work health and safety regulation for the maritime industry. There had previously been a shared understanding that the OHS(MI) Act did not apply to employees on intra-state voyages and that these employees were covered by state work health and safety legislation. This shared understanding has informed the regulatory approaches of AMSA and the state work health and safety regulators. In light of the Aucote decision, however, there is a potential that these employees are instead covered by the OHS(MI) Act.

By making changes to the coverage provisions of the OHS(MI) Act, the Bill engages the right to safe and healthy working conditions. The Bill will amend the coverage provisions of the OHS(MI) Act to ensure that the Act does not apply to employees on intra-state voyages. In place of the OHS(MI) Act, these employees will be covered by state work health and safety laws.

The Commonwealth OHS(MI) Act was based on the Occupational Health and Safety Act 1991 . This Act was replaced by the Work Health and Safety Act 2011 , which represented the Commonwealth’s implementation of the model work health and safety laws. The OHS(MI) Act has not subsequently been updated to reflect the model laws. All employees no longer covered by the OHS(MI) Act will continue to be protected by the more modern state work health and safety laws. As such, these amendments do not limit the right to safe and healthy working conditions. Moreover, ensuring that the interaction between the OHS(MI) Act and the state work health and safety legislation aligns with the shared operational understanding of the regulators will promote the effective oversight and enforcement of Australia’s multi-jurisdictional work health and safety system, supporting the right to safe and healthy working conditions.

The prohibition on retrospective criminal laws

Article 15 of the ICCPR provides that ‘[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed’. The article does not create a general prohibition on retrospective laws, it is only focused on the retrospective application of new criminal offences. The Bill makes amendments with retrospective effect to the application provisions of the Seafarers Act and the OHS(MI) Act, both of which contain criminal provisions. As such, it engages the prohibition on retrospective criminal laws but not so as to create new criminal offences.

An implication of the Federal Court decision in Aucote is that employers who were unaware that they were covered by the Seacare scheme are now potentially guilty of not having a policy of insurance under the Seafarers Act and not providing returns for the Safety Net Fund levy. By retrospectively removing these employers from coverage, they will not be guilty of these offences. This Bill will have the effect that past conduct based on the common understanding of coverage, which has potentially become an offence will not be. This is an appropriate and beneficial measure to prevent a person who has acted in good faith from being found guilty of an offence and so is consistent and arguably supports the prohibition on retrospective criminal laws.

Minister for Employment, Senator the Hon. Eric Abetz

 



NOTES ON CLAUSES

In these notes on clauses, the following abbreviations are used:

Bill

Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015

Seafarers Act

Seafarers Rehabilitation and Compensation Act 1992

OHS(MI) Act

Occupational Health and Safety (Maritime Industry) Act 1993

Seacare scheme

The combined workers’ compensation and work health and safety scheme that applies to the Australian maritime industry under the Seafarers Rehabilitation and Compensation Act 1992 and the Occupational Health and Safety (Maritime Industry) Act 1993

Seacare Authority

Seafarers Safety, Rehabilitation and Compensation Authority

AMSA

Australian Maritime Safety Authority

 

Section 1 - Short title

1.              This is a formal provision specifying the short title of the Act.

Section 2 - Commencement

2.              The table in this section sets out when the provisions of the Bill commence.

3.              Sections 1 to 3 of the Bill commence the day after it receives the Royal Assent.

4.              Part 1 of Schedule 1 to the Bill (which amends the application of the Seafarers Act) commences immediately after the commencement of Part 2 of the Seafarers Act (that is, 24 June 1993).

5.              Part 2 of Schedule 1 to the Bill (which amends the application of the OHS(MI) Act) commences immediately after the commencement of section 6 of the OHS(MI) Act (that is, 18 July 1994).

6.              Schedule 2 to the Bill commences the day the Bill receives the Royal Assent.

7.              The need for retrospective commencement of some of the provisions of the Bill is discussed in the notes to the particular provisions.

Section 3 - Schedules

8.              Clause 3 of the Bill provides that legislation that is specified in a Schedule is amended or repealed as set out in that Schedule and any other item in a Schedule operates according to its terms.



Schedule 1 - constitutional coverage



Part 1 - Seafarers rehabilitation and compensation

Seafarers Rehabilitation and Compensation Act 1992

9.              Section 19 of the Seafarers Act sets out the application of the Act.

10.          Subsections 19(1)-(1A) provide that the Seafarers Act applies to the employment of employees on certain vessels and prescribed ships. In particular, subsection 19(1) provides that the Seafarers Act applies to the employment of employees on a prescribed ship that is engaged in trade or commerce:

·          between Australia and places outside Australia; or

·          between two places outside Australia; or

·          among the States; or

·          within a Territory, between a State and a Territory; or

·          between two Territories.

11.          Subsections 19(2)-(4) provide that the Seafarers Act also has the effect it would have if a reference to an employer was limited to a reference to a trading, financial or foreign corporation and a reference to an employee was limited to a reference to an employee of such a corporation. Subsection 19(5) ensures that the Act does not apply in respect of intra-state state banking or insurance.

12.          The traditional understanding of the operation of subsections 19(2)-(4), shared by the regulators, insurers, employers and employees in the Seacare scheme, has been that these subsections did not operate to extend the operation of the Seafarers Act beyond what is provided in subsections 19(1)-(1A).

13.          In Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182, the Full Court of the Federal Court held that these subsections operate independently of the application provisions in subsections 19(1)-(1A). This had the effect that the Seafarers Act could apply to a seafarer employed by a trading, financial or foreign corporation on a prescribed ship, regardless of whether that employment would fall within subsections 19(1)-(1A).

14.          Part 1 of Schedule 1 to the Bill makes amendments to these application provisions of the Seafarers Act. The broad intention of these amendments is to ensure that the application of the Seafarers Act is consistent with the shared understanding that regulators, insurers, employers and employees have been operating under.

15.          The potential implications for the interpretation of the Seafarers Act of the decisions of the Federal Court and of the Administrative Appeals Tribunal (as discussed below) apply to the Act since its commencement on 24 June 1993. As such, in order to address the issues raised by these decisions, the amendments made by Part 1 of Schedule 1 will apply from the commencement of the Seafarers Act. Claims that have been made or which have already been determined under the Seafarers Act will not be disturbed by the amendments made by the Bill (refer item 5).

Item 1 - At the end of section 4

16.          This item inserts a new subsection at the end of section 4. Section 4 of the Seafarers Act provides a definition of ‘employee’ for the purposes of the Act.

17.          The definition of employee includes trainees and persons (other than trainees) who, although ordinarily employed or engaged as a seafarer, are not so employed or engaged but are required under an award to attend at a Seafarers Engagement Centre for the purpose of registering availability for employment or engagement on a prescribed ship. As such, the definition encompasses individuals who would normally be employed on a prescribed ship but are currently engaged in other activities (such as undergoing training at the request of their employer).

18.          To avoid any doubt, new subsection 4(5) provides that a reference in the Seafarers Act to the employment of an employee is a reference to:

·          if the employee is a trainee, the employee’s performance of the role of a trainee

·          if the employee is a person of the kind referred to in paragraph 4(1)(c) (persons required to attend at a Seafarers Engagement Centre), the employee’s performance of the role of a person of that kind.

19.          This new subsection is intended to make clear that references to the employment of an employee in the Seafarers Act include, for example, an employee undergoing training as required by his or her employer. This is necessary to ensure that the Act applies to the employment of these employees under new section 19A (see item 4).

Item 2 - Subsection 19(1)

20.          In Aucote and Samson Maritime Pty Ltd [2014] AATA 296, the Administrative Appeals Tribunal held that the Seafarers Act applied to Mr Aucote’s claim for compensation for an injury sustained while employed on the Samson Mariner. At the time of the injury, the Samson Mariner had been chartered by John Holland Pty Ltd to assist in the construction of a wharf in the Pilbara region of Western Australia. In carrying out its duties, the Samson Mariner never left Australia’s Exclusive Economic Zone. When complete, the wharf was to be used by Rio Tinto for the export of iron ore.

21.          The Administrative Appeals Tribunal held that the Seafarers Act applied to the claim under subsection 19(1) because the ship was engaged in trade or commerce between Australia and places outside Australia. The Tribunal held that because the purpose of the construction of the wharf was to enable the export of iron ore, the chartering of the Samson Mariner to assist with that construction was in international trade, despite the Samson Mariner remaining entirely within the waters of a single state.

22.          This item amends subsection 19(1) so that the Seafarers Act will apply to the employment of employees on a prescribed ship that is ‘directly and substantially’ engaged in trade or commerce:

·          between Australia and places outside Australia; or

·          between two places outside Australia; or

·          among the States; or

·          within a Territory, between a State and a Territory; or

·          between two Territories.

23.          The inclusion of the qualifier ‘directly and substantially’ is to clarify that more than an incidental relationship between the activities of the ship and the relevant engagement in trade or commerce is required. The intention of this amendment is to make clear that employees on a ship that is engaged in an activity that takes place wholly within a State are not covered even if the activities of the ship are part of an enterprise which is being undertaken to enable or support interstate or international trade or commerce. The activity of the ship must be more than merely incidental or preparatory to interstate or international trade or commerce: there must be a direct and substantial connection. For example, a ship that is voyaging from a port in one state to a port in another state, will clearly be directly and substantially engaged in interstate trade or commerce.

24.          Taking the facts of the Aucote case, the ships used in the eventual export of iron ore by Rio Tinto would be directly and substantially engaged in international trade or commerce. The Samson Mariner’s direct and substantial engagement, however, was only in the construction of a wharf. Even though the eventual use of the wharf would be directly and substantially in international trade or commerce, the construction of the wharf only preceded that international trade or commerce.

25.          The intended distinction between activities which are an inseparable element of interstate or international trade and those activities which are anterior or preparatory to interstate or international trade is reflected in the High Court’s decision in Miller v TCN Channel Nine Pty Ltd  (1986) 161 CLR 556. There, a majority (Gibbs CJ at 565-7, Mason J at 574-5, Brennan J at 495-6, Deane J at 622-3 and Dawson J at 634) held that the establishment and construction of a broadcast station would not be in interstate trade within the meaning of section 92 of the Constitution , even though the use of the station would be in interstate trade. While section 92 of the Constitution is not directly relevant to the amendments made by this item, the intention of the amendments is to establish a similar distinction between engagement in the actual conduct of interstate or international trade, and engagement in activities which merely precede or facilitate interstate or international trade.

Item 3 - Subsections 19(2) to (5)

26.          This item repeals subsections 19(2)-(5).

27.          Subsections 19(2)-(4) provide that the Seafarers Act also has the effect it would have if a reference to an employer was restricted to a reference to a trading, financial or foreign corporation and a reference to an employee was restricted to a reference to an employee of such a corporation. Subsection 19(5) ensures that the Act does not apply in respect of intra-state state banking or insurance.

28.          By repealing subsections 19(2)-(4), the Bill will make clear that the Seafarers Act does not apply to a seafarer because she or he is employed by a trading, financial or foreign corporation on a prescribed ship.

Item 4 - After section 19

29.          This item inserts a new section 19A into the Seafarers Act. New section 19A ensures that the Seafarers Act continues to apply to trainees and certain other individuals.

30.          In addition to its application to seafarers currently employed on a prescribed ship, the Seafarers Act also covers two additional classes of individuals, reflected in paragraphs 4(1)(b) and (c) of the definition of ‘employee’. These two classes are:

·          Individuals required to undertake training at the direction of their employer in relation to their employment on a prescribed ship.

·          Individuals required under an award to attend at a Seafarers Engagement Centre for the purposes of registering their availability for employment or engagement on a prescribed ship.

31.          In Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182, the Federal Court observed that a literal reading of subsection 19(1) could not include a trainee who was undergoing training at the request of their employer, or to the class of persons referred to in paragraph 4(1)(c), since these individuals are not being employed on a prescribed ship (see [41]-[43]). The Federal Court considered that the Seafarers Act only applied to such individuals because of subsection 19(2). As subsections 19(2)-(4) are to be repealed (see item 3), new section 19A is required to ensure that the Seafarers Act continues to apply to the employment of trainees and the class of persons referred to in paragraph 4(1)(c) (persons required to attend at a Seafarers Engagement Centre).

32.          New subsection 19A(1) provides that the Act also applies to the employment of a trainee who would, if he or she were not attending a training course as required by his or her employer, be employed by an employer on a prescribed ship that is either engaged in interstate or international trade or commerce or to which paragraphs 19(1A)(a) or (b) refers, or on a vessel of the kind referred to in subsection 19(1AA).

33.          New subsection 19A(2) provides that the Act also applies to the employment of a person of a kind referred to in paragraph 4(1)(c) (persons required to attend at a Seafarers Engagement Centre) who would ordinarily be employed by an employer on a prescribed ship that is either engaged in interstate or international trade or commerce or to which paragraphs 19(1A)(a) or (b) refers, or on a vessel of the kind referred to in subsection 19(1AA).

34.          New subsection 19A(3) provides that section 19A does not limit section 19.

Item 5 - Application of amendments

35.          This item sets out the application rules for the amendments to the application of the Seafarers Act.

36.          The amendments will generally apply to any injury, loss or damage suffered by an employee on or after the commencement of Part 2 of the Seafarers Act, that is, 24 June 1993.

37.          The amendment will not apply, however, to any injury for which a claim has been made under section 63 of the Seafarers Act prior to the introduction of the Bill to the House of Representatives.

38.          This will ensure that any claims that have been made or which have already been determined under the Seafarers Act will not be disturbed by the amendments made by the Bill.

Item 6 - Compensation for acquisition of property

39.          This item provides that if the operation of Part 1 of Schedule 1 to the Bill results in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies, and the acquisition is otherwise than on just terms, then the Commonwealth is liable to pay a reasonable amount of compensation to the person whose property is acquired.

40.          It is not intended that the amendments made in the Bill will acquire property in a manner that is contrary to the Constitution (that is, other than on just terms). This item is included to ensure that this intention is achieved.  It has the effect that, should any circumstances arise where the amendments in Part 1 of Schedule 1 to the Bill result in a person’s property being acquired, the Commonwealth will be liable to pay reasonable compensation to that person.

41.          Sub-item (2) enables compensation to be negotiated and agreed between the Commonwealth and the person or, failing agreement, for the person to institute proceedings in the Federal Court.

42.          Sub-item (3) provides that the terms ‘acquisition of property’ and ‘just terms’ have the same meaning as in paragraph 51(xxxi) of the Constitution .

Part 2 - Occupational health and safety

Occupational Health and Safety (Maritime Industry) Act 1993

43.          Section 6 of the OHS(MI) Act sets out the application of the Act. These application provisions for the OHS(MI) Act are stated in similar terms to the application provisions in section 19 of the Seafarers Act.

44.          Subsections 6(1), (3) and (3A) provide that the OHS(MI) Act applies to certain prescribed ships and units. In particular, subsection 6(1) provides that the OHS(MI) Act applies to a prescribed ship or unit that is engaged in trade or commerce:

·          between Australia and places outside Australia; or

·          between two places outside Australia; or

·          among the States; or

·          within a Territory, between a State and a Territory or

·          between two Territories.

45.          In addition, by force of subsections 6(6)-(8), the OHS(MI) Act also has the effect it would have if a reference to an operator, manufacturer or supplier were limited to a reference to a trading, financial or foreign corporation and a reference to an employee, contractor or other worker were limited to a person working for a trading, financial or foreign corporation.

46.          As with the application provisions in the Seafarers Act, the traditional understanding of the application of the OHS(MI) Act has been that subsections 6(6)-(8) do not expand the application of the Act beyond that set out in subsections 6(1), (3) and (3A). Because of the similarity between the application provisions in the Seafarers Act and the OHS(MI) Act, however, and in light of the Federal Court decision in Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182, there is a potential that subsections 6(6)-(8) do operate to expand the operation of the OHS(MI) Act.

47.          Part 2 of Schedule 1 makes amendments to ensure that the application provisions of the OHS(MI) Act align with the shared understanding of regulators and industry participants of the Act’s coverage. These amendments will also ensure that the application of the two elements of the Seacare scheme — the workers’ compensation scheme under the Seafarers Act and the work health and safety regulations provided by the OHS(MI) Act — have broadly similar coverage.

48.          The decisions of the Federal Court and of the Administrative Appeals Tribunal have potential implications for the interpretation of the OHS(MI) Act since its commencement on 18 July 1994. As such, in order to address the issues raised by these decisions, the amendments made by Part 2 of Schedule 1 will apply from the commencement of the OHS(MI) Act. This is necessary to ensure that the actual coverage of the OHS(MI) Act aligns with the shared understanding that regulators and industry participants have been operating under during this time.

Item 6 - Subsection 6(1)

49.          This item amends subsection 6(1) so that the OHS(MI) Act will apply to a prescribed ship or unit that is directly and substantially engaged in trade or commerce:

·          between Australia and places outside Australia; or

·          between two places outside Australia; or

·          among the States; or

·          within a Territory, between a State and a Territory; or

·          between two Territories.

50.          The addition of the ‘directly and substantially’ qualifier is intended ensure that the OHS(MI) Act has the same broad application as the Seafarers Act. The intended distinction established by the qualifier is discussed in relation to item 2 of Schedule 1, above.

Item 7 - Subsections 6(5) to (9)

51.          This item will repeal subsections 6(5)-(9).

52.          Subsection 6(5) provides that, without prejudice to its effect other than subsection 6(5), the OHS(MI) Act also has effect as provided by subsections (6), (7) and (8).

53.          Subsections 6(6), (7) and (8) provide that the OHS(MI) Act has, by force of those subsections, the effect it would have if a reference to an operator, manufacturer or supplier was limited to a reference to a trading, financial or foreign corporation and a reference to an employee, contractor or other worker was limited to a person working for a trading, financial or foreign corporation.

54.          Subsection 6(9) ensures that these provisions do not apply the OHS(MI) Act with respect to intra-state state banking or insurance.

55.          Repealing these subsections will ensure that the OHS(MI) Act will only apply as provided for in subsections 6(1)-(3A).

Item 8 - Application of amendments

56.          This item provides that the amendments made by Part 2 of Schedule 1 to the Bill apply in relation to anything done on or after the commencement of section 6 of the OHS(MI) Act, that is, 18 July 1994.



Schedule 2 - Application of the seafarers rehabilitation and Compensation Levy

Seafarers Rehabilitation and Compensation Act 1992

Item 1 - Section 3 (definition of seafarer berth )

Item 2 - Section 3 (at the end of the definition of seafarer berth )

57.          These items amend the definition of ‘seafarer berth’, which is currently defined to mean a berth on a prescribed ship that is normally used by a seafarer. 

58.          Item 1 will amend this definition to clarify that only a berth being used by a seafarer to whom the Seafarers Act applies is a seafarer berth. This means, for example, that if an exemption from the Act has been granted in respect of a seafarers’ employment, then their berth would not be a seafarer berth.

59.          Although defined in the Seafarers Act, the term ‘seafarer berth’ principally affects the operation of the Seafarers Rehabilitation and Compensation Levy Act 1992 (section 3 of that Act provides that, unless the contrary intention appears, an expression used in that Act has the same meaning as in the Seafarers Act). Under the Seafarers Rehabilitation and Compensation Levy Act 1992 a levy is imposed on the seafarer berths on prescribed ships. This levy can be recovered as a debt due to the Commonwealth under section 8 of the Seafarers Rehabilitation and Compensation Levy Collection Act 1992 .

60.          This amendment will ensure that if the Seafarers Act does not apply to a seafarers’ employment (and so he or she is covered by the equivalent State legislation), then their employer will not be liable for a levy in respect of their berth.

61.          Item 2 will insert a note to the definition of seafarer berth which will direct readers to section 19, which sets out the application of the Seafarers Act.

Item 3 - Subsection 20A(1)

Item 4 - Subsection 20A(3)

62.          These items amend section 20A. Section 20A allows the Seacare Authority to exempt the employment of one or more employees on a prescribed ship from the application of the Act.

63.          These items will amend section 20A so that an exemption would also exempt the employee’s employment from the application of the Seafarers Rehabilitation and Compensation Levy Act 1992 and the Seafarers Rehabilitation and Compensation Levy Collection Act 1992 . This will ensure that where an exemption is granted in respect of an employee’s employment, their employer will not be required to pay a levy under those Acts.

Item 5 - Transitional provision

64.          This item sets out the transitional rules for the amendments to section 20A of the Seafarers Act made by the Bill.

65.          The item provides that applications in force under section 20A the day the Bill receives the Royal Assent will continue to have effect and will apply as an exemption from the Seafarers Act, the Seafarers Rehabilitation and Compensation Levy Act 1992 and the Seafarers Rehabilitation and Compensation Levy Collection Act 1992 .

66.          This will ensure that existing exemptions are consistent with future exemptions and will avoid the administrative expense of re-issuing all current exemptions in force under the Seafarers Act.

 




[1] Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art. 9) , U.N. Doc E/C.12/GC/19 (2008), [17].

[2] Ibid [28].

[3] Ibid [11].