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Navigation Amendment (Employment of Seafarers) Bill 1998

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1998

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

Navigation Amendment (Employment of Seafarers) Bill 1998

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by Authority of the Minister for Workplace Relations and Small Business,

the Honourable Peter Reith MP)



Navigation Amendment (Employment of Seafarers) Bill 1998

 

OUTLINE

The Navigation Act 1912 (the Act) provides the legislative basis for regulating ship safety, and environmental protection, and also includes provisions related to the coasting trade, seafarers’ employment and qualifications, and salvage.

 

The Navigation Amendment (Employment of Seafarers) Bill 1998 (the Bill) will amend the employment related provisions in the Act so as to avoid inconsistencies with the Workplace Relations Act 1996 (WR Act) and the concept of company employment for all seafarers serving in the Australian shipping industry.

 

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 WR Act. 

 

In summary, the Bill will repeal provisions dealing with:

·         the Marine Council and its functions;

·         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.  However, sections 83, 85, 91 and 94 dealing with 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 goes bankrupt during a voyage, are being retained. 

 

The Marine Council comprises an employee of the Australian Maritime Safety Authority,  and representatives of shipowners and seafarers.  Its main functions have been to deal with issues concerning the suitability of seafarers for employment at sea and standards of accommodation. Under company employment it is the responsibility of the employer to determine these matters and there is no need for a Government appointed body to perform such tasks.

 

The Bill repeals about fifty 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 WR Act.  The revised definition of an agreement in the context of the Navigation Act is referred to in sections 6(1) and 6(8). 

 

FINANCIAL IMPACT STATEMENT

While the amendments will enhance the operation of the Act, they will have no significant impact on Commonwealth revenues or outgoings.  In respect of industry, the removal of the legislative requirements covered by the amending Bill will reduce the cost of complying with Government regulation.

 

REGULATION IMPACT STATEMENT

 

1.         Problem

 

The main problem arises from the fact that the Navigation Act includes a large number of provisions covering the employment of seamen, which are inconsistent with the aims of the WR Act. The main difference between the Navigation Act and the WR Act, is that the Navigation Act is highly prescriptive and applies industry wide, whereas the WR Act provides flexibility for employment arrangements to be determined at the enterprise level in a manner that suits the business of individual employers.

 

The Navigation Act has its origins in the British Merchant Shipping Act of 1894.  Originally covering a large number of matters dealing with merchant shipping, its function today is largely to provide the legislation framework for the protection of safety of life at sea, control of ship-sourced pollution and the participation of ships in Australia's coasting trade.

 

The employment related provisions in the Navigation Act (the Act) were developed principally to deal with a situation where the majority of seafarers were employed on a casual basis for service on a particular ship for a particular voyage.  The situation today is that masters and ships’ officers are engaged under company employment arrangements and moves are in hand to bring other seafarers under similar arrangements. 

 

Examples of the over-prescriptive employment conditions in the Act, which are no longer appropriate, include:

·         over thirty separate provisions prescribing details of how seafarers are to be engaged and discharged from individual ships;

·         over thirty five 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.

 

2.                   Objectives

The Government’s prime objective is to update the Act to bring it into line with practices that are relevant to the operation of a modern and efficient shipping industry. This is being achieved through a two-stage review of the Act.  Stage 1, which is to be implemented through the Navigation Amendment (Employment of Seafarers) Bill 1998, is aimed at removing employment-related provisions in the Act that are inconsistent with the WR Act and the concept of company employment.  Stage 2 will involve a comprehensive rewrite of the Act to make it a more efficient regulatory tool.

 

Other related objectives of the Stage 1 amendments are to:

·         remove outdated and inappropriate legislative requirements;

·         as far as practicable, bring legislation applying to seafarers into line with that applying to employees in other industries; and

·         reduce costs of administering and complying with legislation.



 

3.         Options

 

Implementation of the amendments in the Bill is the only effective option available to remove inconsistencies between the prescriptive employment legislation in the Navigation Act and the flexible arrangements available under the WR Act.  The WR Act provides the flexibility needed for the effective implementation of employment arrangements that best meet the needs of individual enterprises.

 

While the Bill calls for the repeal of many employment related provisions in the Navigation Act, parties involved in the shipping industry in Australia will still have the option of seeking legislative backing for their employment agreements through the mechanisms available under the WR Act.

 

4.         Impact

 

The main impact of the stage 1 amendments will be to reduce the extent of prescriptive regulation applying to ship owners/operators, seafarers and the Australian Maritime Safety Authority (AMSA).

 

The changes will also bring relevant legislation into line with present day employment arrangements and encourage employers and employees to negotiate company employment arrangements that best suit particular situations.

 

The abolition of the Marine Council and the removal of prescriptive requirements associated with the traditional articles of agreement will reduce administrative costs for AMSA and shipping companies.

 

5.         Consultation

 

The Minister for Workplace Relations and Small Business, the Honourable Peter Reith MP, announced on 18 December 1997 that the Government would actively pursue the implementation of company employment in the Australian shipping industry as part of the agenda for shipping reform.  In this regard the Minister has met with both employers and employees.

 

The Minister also announced on 2 April 1998 that the Government had commenced a two-stage review of the Navigation Act, and that stage 1 was currently under way.  The stage 1 amendments are aimed at implementing changes that are consistent with company employment and can be dealt with simply and expeditiously.

 

In developing the stage 1 amendments advice was sought from a number of industry sources about the implications of those amendments.  While the broad thrust of the amendments was seen as consistent with company employment for all seafarers, there was some concern expressed about removing the current prescriptive requirements for ‘articles of agreement’. 

 

‘Articles of agreement’ are a contract between a ship’s master, acting on behalf of the employer, and each member of that ship's crew.  They have a long history, which dates back to the time when the majority of seafarers were employed on a casual basis for service on a particular ship for a particular voyage.  In these early days, the ‘articles of agreement’ provided the only evidence of an employment agreement for seafarers.  The situation has changed greatly over the past seventy years and seafarers' conditions of employment can now be protected by awards and company employment agreements, with legal backing available through the WR Act.

 

The concerns expressed on this matter have been addressed by retaining a provision in the Navigation Act, which requires the owner/operator of a ship to enter into an agreement with the master and seamen contracted to serve on their ships. The precise details of agreements will be left for the parties concerned to negotiate in a manner consistent with individual shipping company operations.

 

6.         Conclusions

 

The stage 1 amendments to the Navigation Act provide measures, which are appropriate to a situation where company employment is to be the norm in the Australian shipping industry.  Accordingly, the amendments provide for the repeal of a large number of employment related provisions in the Navigation Act dealing with the following matters: 

 

·         the Marine Council and its functions;

·         prohibition on demanding or receiving fees for the supply of seamen;

·         prohibition (except as prescribed) 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

·         detailed procedures for the discharge of seamen from service on a ship and methods for paying their wages.

 

Details of the amendments are given in the Explanatory Memorandum.

 

7.       Implementation and Review

The passage of the Navigation Amendment (Employment of Seafarers) Bill 1998 will implement the changes outlined in the conclusions section above.

 

The effect of these amendments will be monitored over the period of transition from the current arrangements to full company employment for all seafarers.

 

While there will be a number of employment related provisions remaining in the Act after the stage 1 amendments have come into force, these are considered to be matters that need further consideration and have therefore been left for the stage 2 review.  

 

 



 

NOTES ON CLAUSES

 

Clause 1:          Short title

 

Clause 1 provides that the Bill may be cited as the Navigation Amendment (Employment of Seafarers) Act 1998 .

 

Clause 2:          Commencement

 

Clause 2 specifies that the Act will commence 28 days after the day it receives Royal Assent.

 

Clause 3:          Schedule(s)

 

Clause 3 provides for the amendment of the Navigation Act 1912 as specified in the Schedule.

 

 

            Schedule 1 - Amendment - Navigation Act 1912

 

 

Item 1:              Subsection 6(1)  (definition of agreement )

 

Item 1 repeals the definition of ‘agreement’, which is replaced by a new definition in subsection 6(8).  This is being done to remove the present narrow definition of ‘agreement’ which only covers the traditional ‘articles of agreement’ and to broaden the definition to cover any form of agreement including certified agreements and Australian workplace agreements.

 

 

Item 2:              Subsection 6(1) (definition of articles of agreement )

 

Item 2 repeals the definition of ‘articles of agreement’ consistent with Item 1 above.

 

 

Item 3:              Subsection 6(1) (definition of the Marine Council )

 

Item 3 repeals the definition of ‘Marine Council’ as the Marine Council is to be abolished.

 

 

Item 4:              Subsections 6(4A), (4B) and (4C)

 

This item repeals subsections 6(4A), (4B) and (4C) as these pertain to ‘articles of agreement’, which will no longer be mandatory under the Act.

 

 

Item 5:              At the end of section 6

 

A new definition of ‘agreement’ is added to the Act under this item so as to broaden its meaning to encompass the wider range of agreements that is envisaged under the Workplace Relations Act.

 



 

Item 6: Section 6B

 

Item 6 repeals section 6B, which defines the circumstances in which a seaman is considered to have deserted a ship. This is a matter that should be determined directly between employers and their seagoing employees.

 

 

Item 7:              Section 6E

 

Item 7 replaces the current section 6E with a more streamlined section under which employers and their individual masters and seamen will continue to seek to agree as to the proper return port.  In the absence of agreement, however, the proper return port will be the port at which the master or seaman concerned joins the ship. There will be no need, under new employment arrangements, for a review mechanism in the Navigation Act to consider disputes over the proper return port.

 

 

Item 8: Section 17

 

This item repeals section 17 concerning the production of certificates covering the qualifications of seafarers employed under the system of articles of agreement which will no longer be mandatory (see item 12 below).  However, the requirement to produce qualification certificates to the Australian Maritime Safety Authority will be able to be covered through Marine Orders made pursuant to section 15 of the Act.

 

 

Item 9:              Division 4 of Part II

 

This item repeals Division 4 of Part II, which prohibits the demanding or receiving of remuneration for providing a seaman with employment.  Under present day practices there is no reason to have such a provision in the Navigation Act.

 

This provision originally came from the British Merchant Shipping Act 1894 and was intended to prohibit demanding payment from seamen for finding them jobs - a practice known as ‘crimping’.  The current wording in section 32 is in line with the wording of Article 2 of ILO Convention No. 9, Placing of Seamen 1920, which Australia is in the process of denouncing.  At present there are many ship management and crewing agents around the world (including Australia) that specialise in managing crewing matters (including supplying seamen) on behalf of shipowners and charge shipowners for such services.

 

 

Item 10:            Division 7 of Part II

 

This item repeals Division 7 of Part II, which places restrictions on ships’ crews handling cargo or ballast while in an Australian port.  Work carried out by a ship’s crew should be a matter for negotiation between employers and employees, subject to applicable safety standards.

 



 

Item 11:            Division 8 of Part II (heading)

 

Item 11 repeals the heading of Division 8 of Part II and substitutes it with ‘Division 8 - Employment of seafarers’, which is more appropriate to a situation where company employment is the norm.

 

 

Item 12:            Section 46

 

This item repeals the present highly prescriptive provisions in section 46 covering the form of agreement for the employment of seafarers.  The Bill replaces these provisions with a much simplified requirement to the effect that the owner of a ship must enter into an agreement, as defined in the new subsection 6(8), before a ship is taken to sea.  The details of such an agreement will be matters for negotiation between the parties concerned.

 

Also, in line with current practice, the penalty of $2,000 in section 46 is changed to 20 penalty units.  A ‘penalty unit’ is prescribed by section 4AA of the Crimes Act 1914 and is presently set at $110.  Therefore, at the commencement of the Act, the new penalty will be $2,400.

 

 

Item 13:            Sections 47 and 48

 

Item 13 repeals sections 47 and 48, dealing with Marine Council determinations and masters’ reports that persons are unsuitable for engagement as seafarers.  This is being done as a consequence of the Government’s decision to abolish the Marine Council and its functions.

 

 

Item 14:            Section 50

 

Item 14 repeals section 50, which places a 6 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.  These are matters that can be dealt with by negotiations between employers and their seagoing employees and it is not appropriate to have them prescribed in the Navigation Act.

 

 

Item 15:            Section 52

 

Item 15 amends section 52 by removing the requirement for the employer to notify the Australian Maritime Safety Authority (AMSA) of changes of crew on a ship.  However, for safety purposes s.52 will retain the requirement that owners and/or masters are required to 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.

 



 

Item 16:            Sections 53, 54, 55, 56 and 57

 

Item 14 repeals sections 53, 54, 55, 56 and 57.  This is required as a consequence of repealing the mandatory requirement for a ship to have ‘articles of agreement’ as defined in the current section 6(1).  Further explanation of this issue is provided under item 1 above.

 

 

Item 17:            Division 9 of Part II

 

Item 17 repeals all the sections in Division 9 of Part II of the Act because there will no longer be a need for a legislative requirement for the master to issue a seaman with a certificate of discharge.  This is a process associated with ending a seafarer’s employment agreement under articles of agreement, which will no longer be mandatory. 

 

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 Organization's Convention on Standards of Training Certification and Watchkeeping (STCW).  This requirement can be provided for under Marine Orders made pursuant to s.15 of the Act.

 

 

Item 18:            Sections 70, 71, 72, 73, 75, 75A, 76, 77, 78, 81 and 82

 

This item repeals those sections 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.  Given the changes to the definition of agreement under items 1 and 2 above, these provisions are no longer appropriate.  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.

 

The sections to be repealed deal with:

·         allotment of seamen’s wages (s.70);

·         right to sue upon allotment notes (s.71);

·         commencement of payment (s.72);

·         allotment to banks (s.73);

·         payment of wages upon discharge (s.75);

·         computation of wages (s.75A);

·         account of wages on discharge (s.76);

·         time for payment of wages (s.77);

·         wages to run on in certain cases (s.78);

·         reference of differences to superintendent (s.81);

·         commencement of right to wages (s.82).

 



 

Item 19            Section 84

 

Item 19 repeals section 84, which provides that wages shall not be dependent on the earning of freight.  This is an outdated provision and the conditions applicable to the payment of wages to seafarers are matters that should be negotiated between employers and employees as in other industries in Australia.

 

 

Item 20            Subsection 85(1)

 

This item amends subsection 85(1) to make it consistent with new employment arrangements whereby employment is not necessarily connected with a particular voyage or ship. 

 

Consequently, the phrase ‘belonging to a ship is terminated, before the time contemplated in the seamen’s agreement’ is to be deleted and substituted with the words ‘on a ship is terminated’.

 

 

Item 21:            Section 88

 

Item 21 repeals section 88 which is related to the processes associated with the engagement and discharge of seamen under the traditional articles of agreement system, which will no longer be mandatory.  The issues covered in this section should be subject to negotiations between employers and their seagoing employees.

 

 

Item 22:            Section 93

 

This item repeals section 93 and the explanation under item 21 above also applies here.

 

 

Item 23:            Subsection 104(2)

 

This item amends subsection 104(2) to omit the reference to the content of articles of agreement, as these will no longer be mandatory under the Act.

 

 

Item 24:            Section 132

 

This item repeals section 132, which is essentially a sick leave provision and should more appropriately be covered in awards or employment arrangements under the Workplace Relations Act.

 

 

Item 25:            Paragraph 132A(1)(a)

 

Item 25 amends section 132A(1)(a) to remove the reference to section 132, which is to be repealed.

 



 

Item 26:            Section 132B

 

Item 26 repeals section 132B, which concerns requirements for 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.

 

 

Item 27:            Section 138

 

This item repeals section 138.  This section, which allows the Marine Council to consider and make recommendations to the Minister on crew accommodation, is no longer applicable because the Marine Council is to be abolished.

 

 

Item 28:            Paragraph 145(1)(a)

 

Item 28 amends paragraph 145(1)(a) by omitting words that relate to ship by ship employment arrangements under articles of agreement, which will no longer be mandatory.

 

 

Item 29:            Section 148C and 148D

 

Item 29 repeals sections 148C and 148D as they contain matters that should more appropriately be dealt with under employment arrangements covered by the Workplace Relations Act.  These sections concern the wages and effects of seamen left behind (s.148C) and wages and effects to be held in trust (s.148D).

 

 

Item 30:            Subsection 151(2)

 

This item amends subsection 151(2) by deleting the words ‘, and if the ship’s agreement will terminate at a time when the ship is outside Australia, shall ’.  This deletion is necessary because it refers to ‘articles of agreement’ which will no longer be mandatory under the Act.

 

 

Item 31:            Subsection 154(3)

 

This item amends subsection 154(3) by deleting the words ‘, or the certificate of a proper authority stating that certain seamen were shipped in the ship from a port outside Australia,’.  This is being done because the Australian Maritime Safety Authority will no longer issue such certificates.

 

 

Item 32:            Subsection 161(2)

 

Item 32 repeals subsection 161(2) covering wages and allotments for seafarers because provisions in the Act related to these matters are to be repealed (see item 18 above).

 

 

 

Item 33:            Section 163(1) (definition of distressed seaman)

 

Item 33 amends the definition of ‘distressed seamen’ by deleting the words ‘been discharged or’.  This amendment is necessary because provisions concerning ‘discharge’ of seamen in the context of the articles of agreement system are also to be repealed.

 

 

Item 34:            Paragraph 167(1)(a)

 

This item repeals paragraph 167(1)(a), which requires the production of ‘articles of agreement’, which will no longer be mandatory under the Act.  The heading of section 167 is also amended to remove reference to ‘agreement’ and changed to read ‘Official log book to be produced’.

 

 

Item 35:            Subsections 167(2) and (3)

 

Item 35 repeals subsections 167(2) and (3) and substitutes them with a new subsection 167(2), which omits references to ‘articles of agreement’.  However, the requirement that the superintendent return the official log book to the master within a reasonable time is retained.

 

 

Item 36:            Subsection 171(5)

 

This item amends subsection 171(5) by deleting the words ‘more than 24 hours after the arrival of a ship at its final port of discharge’ and substituting them with ‘after the end of the prescribed period’.  This amendment recognises that ships may not necessarily operate on the basis of having a final port at which the crew is to be discharged.  Seafarers engaged on company employment agreements will not have to be discharged from a particular ship as their employment will be continuous and cover service on more than one ship operated by the employer.

 

 

Item 37:            Section 172A

 

Item 37 repeals section 172A as it deals with disciplinary matters in section 46(4A) which is to be repealed and ascribes a function to the Australian Maritime Safety Authority which it will no longer be undertaking.  Discipline is a matter that should be handled by the employer, as is the case in other industries in Australia.

 

 

Item 38:            Subsection 173(1)

 

This item amends subsection 173(1) by deleting the words ‘on termination of the articles of agreement of the ship’ and inserting ‘at such time and in such manner as prescribed’.  This recognises that articles of agreement will no longer be mandatory.

 



 

Item 39:            Subsections 184(1) and (2)

 

These subsections are to be amended by deleting ‘articles of’ so as to remove references to ‘articles of agreement’, but to still recognise that shipowners will have employment agreements with seafarers in their employ.

 

 

Item 40:            Section 209

 

This item amends section 209 to remove the phrase at the end of the section which refers to the discharge of a seaman as this relates to the articles of agreement system, which will no longer be prescribed under the Act.  A consequential change is needed to the heading of this section to remove the phrase ‘claim discharge from’ and replace it with ‘refuse to sail on.

 

 

Item 41:            Section 251

 

Item 41 amends section 251 by omitting the phrase at the end of the first paragraph, which refers to the discharge of a seaman.  This amendment is necessary for the same reasons given under item 40 above.

 

 

Item 42 :           Subsection 288(3)

 

This item removes the requirement in paragraph 288(3)(c) that the crew of a ship licensed to engage in the coasting trade be given access to a library provided for passengers - where no separate library is provided for the crew.  This is an archaic provision which has no relevance to present day conditions.

 

 

Items 43, 44, and 45

 

These items provide for consequential amendments to subsections 288(4),(5) and (6)

resulting from the change referred to under item 42 above.

 

 

Item 46:            Subsection 290(1)

 

This item amends subsection 290(1) by deleting the phrase referring to section 46, which is to be repealed, and substituting a phrase which links subsection 290(1) to the amended definition of ‘agreement’ to be included in section 6 (see item 1 above). 

 



 

Item 47:            Paragraphs 377C (d), (e), (f) and (g)

 

On the basis that they relate to employment provisions being repealed under the Bill, the above paragraphs, which allow for Administrative Appeals Tribunal reviews, are also 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.

 

 

Item 48:            Section 424

 

This item repeals section 424 concerning the establishment and composition of the Marine Council.  The Marine Council’s main functions have been to deal with issues concerning the disciplining of seafarers and their suitability for employment at sea and the standards of accommodation in Australian ships.  Under company employment it is the responsibility of the employer to determine these matters and there is no need for a Government appointed body to perform such tasks.

 

----------------------------------------------------------------------

 

 

          Schedule 2 - Consequential amendments of other Acts

 

            Occupational Health and Safety (Maritime Industry) Act 1993

 

Item 1:             Section 4 (definition of articles of agreement)

 

This item repeals the definition of ‘articles of agreement’ because these will no longer be mandatory under the Navigation Act.  The amendment is a consequence of the changes referred to under items 1 and 2 in Schedule 1.

 

 

Item 2:              Section 4 (definition of employee)

 

This item replaces the existing definition of ‘employee’ with a new definition, which does not include a reference to a person engaged on a prescribed ship or unit under articles of agreement.  This amendment is consequential to the repeal of the definition of ‘articles of agreement’ .