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Seafarers and Other Legislation Amendment Bill 2016

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2016

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

SEAFARERS AND OTHER LEGISLATION AMENDMENT BILL 2016

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment, Senator the Hon. Michaelia Cash)

 



 

 

 



OUTLINE

SEAFARERS AND OTHER LEGISLATION AMENDMENT BILL 2016

 

The Seacare scheme provides workers’ compensation and work health and safety (WHS) protections to a very small defined section of the Australian maritime industry. The scheme is established by the Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act) and the Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act), as well as two levy Acts. The scheme generally only applies to Australian flagged vessels and foreign flagged vessels with an Australian crew and operator that are engaged in interstate, international or territorial trade or commerce. As of July 2015, the scheme was known to apply to 336 vessels and 6,863 employees (a small portion of approximately 80,000 domestic seafarers in Australia).

 

The Seacare scheme commenced in 1993 and has not been substantively updated since this time, despite changes in the profile of the Australian maritime industry, including to its employment arrangements, workplaces and working conditions.

 

The Seafarers and Other Legislation Amendment Bill 2016 (Bill) will clarify the coverage of the scheme, update the current workers’ compensation and work health and safety arrangements and improve the scheme’s governance. The Bill also gives effect to recent changes to the Maritime Labour Convention and makes minor amendments to broader Commonwealth workers compensation and work health and safety laws.

 

The Seafarers Safety and Compensation Levies Bill 2016 and the Seafarers Safety and Compensation Levies Collection Bill 2016 support this reform package by establishing new cost recovery arrangements to fund the regulatory oversight of the Seacare scheme.

 

Coverage

The Bill inserts new provisions into the Seafarers Act to clarify the coverage of the Seacare scheme while maintaining similar scope.

 

The current provisions of the Seafarers Act and the OHS(MI) Act cause significant uncertainty for employers, employees and the Seacare scheme’s regulators. The Federal Court’s decision in Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 ( Aucote ) significantly expanded coverage of the scheme, but even before this, there had been considerable practicable difficulty determining coverage.

 

Vessels can move in and out of coverage from voyage to voyage. This means vessels need to have insurance cover to meet the state or territory and the national law.

 

The changing profile of vessels operating around Australia from predominately coastal and international shipping to an increasing number of vessels involved in the offshore oil and gas sector has added to this complexity in coverage.

 

The new coverage test is two tiered and removes the need to refer to the (repealed) Navigation Act 1912 by incorporating relevant definitions into the Seafarers Act.

 

 

The new test is:

(1) a vessel must be a ‘prescribed vessel’; and

(2) the vessel must not be used wholly or predominantly for voyages or other tasks that are within the territorial sea of a particular state or territory.

 

Employers and operators of vessels may apply to the Safety, Rehabilitation and Compensation Commission (SRCC) to ‘opt-in’ or seek an exemption from the scheme.

 

The workers’ compensation and work health and safety coverage of the scheme will be the same, except:

·          vessels registered on the Australian International Shipping Register will not be covered by the Seafarers Act, preserving current arrangements; and

·          minor adjustments will be made to the coverage of the Work Health and Safety Act 2011 (WHS Act) to avoid regulatory overlap with the Offshore Petroleum and Greenhouse Gas Storage Act 2006,  again preserving existing arrangements.

Workers’ compensation changes

The Bill implements the recommendations of the Review of the Seacare Scheme Report (March 2013) by restoring the historic link between the Seacare scheme and broader Commonwealth workers’ compensation arrangements by updating the Seafarers Act to:

·          extend the definition of ‘medical treatment’ to include further types of compensable treatment;

·          reduce the threshold for compensation for a permanent impairment that is a binaural hearing loss from 10% to 5%;

·          change the level of contribution of employment to an injury that is a disease from a  ‘material’ to a ‘significant’ degree; and

·          change the coverage of psychological injuries to exclude injuries suffered as a result of ‘reasonable administrative action taken in a reasonable manner’ instead of as a result of ‘reasonable disciplinary action’.

The Seafarers Act will also be amended to ensure that persons in receipt of incapacity payments can continue to receive those payments until they reach ‘pension age’, which is increasing as a result of changes to the Social Security Act 1991 , and align the Act with minimum benchmarks to be set by the National Injury Insurance Scheme for workplace accidents. Mirror amendments to equivalent provisions of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) are also made by this Bill.

Work Health Safety

The outdated OHS(MI) Act will be repealed and the WHS Act will be extended to apply to the Seacare scheme with some sector-specific amendments to that Act.

Maritime Labour Convention Changes

Amendments to the compulsory insurance arrangements for the scheme will also be made to ensure Australia complies with new provisions of the Maritime Labour Convention due to come into force for Australia on 18 January 2017.

 

 

Governance

The Bill will also improve the scheme’s governance arrangements by integrating the functions currently performed by the Seafarers Safety, Rehabilitation and Compensation Authority (Seacare Authority) into the Commonwealth workers’ compensation scheme (Comcare scheme). The Seacare Authority will be abolished and the functions split between Comcare and the SRCC. Industry representation will be maintained by enabling the Chairperson of the SRCC to appoint an advisory group, constituted of employee and employer representative(s), to provide support and industry expertise to the SRCC and Comcare, as required. The Australian Maritime Safety Authority’s (AMSA) current work health and safety regulatory role will be maintained.

 

Other Amendments to the Work Health and Safety Act 2011

In addition to the amendments to the Seacare scheme the Bill includes amendments to the WHS Act which are of a general application. These include

·          technical amendments to section 12 of the WHS Act to clarify the WHS Act applies to ‘upstream duty holders’ where the activity gives rise to a potential risk to workers cover by the WHS Act;

·          the removal of the requirement on businesses to provide Comcare with an up to date list of HSRs;

·          the replacement of the reference to giving ‘directions’ in a Provisional Improvement Notice, with giving ‘recommendations’; and

·          clarification that Judges and Heads of Mission are not ‘officers’ for the purpose of the WHS Act.

 

 

 

 

 

 

 

 

 

 

 

 

 

 



FINANCIAL IMPACT STATEMENT

N/A

 



Australian Government, Department of Employment

 

Seacare Reforms

Regulation Impact Statement

 

September 2016



 

List of Abbreviations and Defined Terms

AAT

Administrative Appeals Tribunal

ABS

Australian Bureau of Statistics

ACT

Australian Capital Territory

Advisory Group

The Seacare Advisory Group

AMSA

Australian Maritime Safety Authority

The Department

Department of Employment

EY Review

Ernst & Young Actuarial Business Consultants Pty Ltd, Evaluation of the Seacare Scheme, May 2005

FPSO

Floating Production Storage and Offloading vessel

HSR

Health and Safety Representative

Levy Act

Seafarers Rehabilitation and Compensation Levy Act 1992 (Cth)

Levy Collection Act

Seafarers Rehabilitation and Compensation Levy Collection Act 1992 (Cth)

Model WHS Laws

Model work health and safety laws developed by Safe Work Australia

Navigation Act

Navigation Act 1912

NDIS

National Disability Insurance Scheme

NIIS

National Injury Insurance Scheme

NSW

New South Wales

NT

Northern Territory

OHS Act

Occupational Health and Safety Act 1991 (Cth)

OHS(MI) Act

Occupational Health and Safety (Maritime Industry) Act 1993 (Cth)

OHS(MI)(NS) Regulations

Occupational Health and Safety (Maritime Industry) (National Standards) Regulations 2003 (Cth)

OHS(MI) Regulations

Occupational Health and Safety (Maritime Industry) Regulations 1995 (Cth)

PCBU

Person Conducting a Business or Undertaking

PIN

Provisional Improvement Notice

PwC

PricewaterhouseCoopers

QLD

Queensland

RIS

Regulation Impact Statement

SA

South Australia

SWA

Safe Work Australia

Seacare Authority

Seafarers Safety, Rehabilitation and Compensation Authority

Seacare Code

Seacare Authority Code of Practice

Seafarers Act

Seafarers Rehabilitation and Compensation Act 1992 (Cth)

Social Security Act

Social Security Act 1991 (Cth)

SRC Act

Safety, Rehabilitation and Compensation Act 1988 (Cth)

SRCC

Safety, Rehabilitation and Compensation Commission

Stewart-Crompton Review

Review of the Seacare Scheme, Mr Robin Stewart-Crompton, March 2013

TAS

Tasmania

The Fund

Safety Net Fund

WA

Western Australia

WHS Act

Work Health and Safety Act 2011 (Cth)

WHS Regulations

Work Health and Safety Regulations 2011 (Cth)

 



 

Executive Summary

The Seacare scheme is a workers’ compensation and work health and safety scheme covering a small defined segment of the Australian maritime industry. The Seacare scheme is underpinned by the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (Seafarers Act) and the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) (OHS(MI) Act).

Two independent reviews of the Seacare scheme ( the “ Ernst & Young Actuarial Business Consultants Pty Ltd Evaluation of the Seacare Scheme”) ( EY Review), conducted in 2005, and the “ Review of the Seacare Scheme by Mr Robin Stewart-Crompton” (Stewart-Crompton Review), conducted in 2012-13) have highlighted that it needs widespread reform. Its work health and safety arrangements are outdated and require alignment with contemporary work health and safety law and practice. In addition, the Seacare scheme is not sufficiently funded to be adequately administered and regulated; coverage of the Seacare scheme is unclear; and its governance arrangements are regarded as inefficient.

Since the commencement of the Seacare scheme in 1993, there have been important changes in the profile of the Australian maritime industry, including to its employment arrangements, workplaces and working conditions, health care and rehabilitation and technology. The Seacare scheme has not kept pace with these changes and has come under significant pressure as a result.

The changes to the profile of the maritime industry have created issues with the coverage of the Seacare scheme for governments, regulators, employers and employees. Scheme participants have significant difficulty determining with certainty whether a ship and its employees are covered by the Seacare scheme. This lack of certainty has resulted in a large number of disputed claims.

The Seacare scheme’s coverage issues have been exacerbated by the Full Federal Court decision in Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 (the Aucote decision). That decision had the effect of expanding the coverage of the Seacare scheme from around 340 ships (as of July 2015) to potentially over 10,000 ships, which would have significant cost implications for the Government and maritime industry employers. The Seacare Authority and the Government have taken actions to confine the coverage of the Seacare scheme following the decision.

The OHS(MI) Act, which is the Seacare scheme work health and safety legislation, is considerably out-of-date and is not aligned with the model work health and safety laws (model WHS laws) that operate in most of Australia. Because of this, the OHS(MI) Act is not proving effective in securing the health and safety of seafarers.

The governance arrangements applying to the Seacare scheme require reform to address inefficiencies and provide more effective oversight of the Seacare scheme. The Seafarers Safety, Rehabilitation and Compensation Authority (Seacare Authority) consists of seven part-time members who meet on a quarterly basis. It does not have the staff or financial resources to effectively oversee the Seacare scheme. The Australian Maritime Safety Authority (AMSA), which is the WHS inspectorate for the Seacare scheme under the OHS(MI) Act, does not receive any appropriation to undertake this role. The lack of resourcing for the Seacare Authority (and Comcare to assist the Authority) and AMSA limits their ability to effectively perform their regulatory functions for the Seacare scheme.

 

During the development of proposed reforms to the Seacare scheme, three options were considered:

1.          maintain the Seacare scheme in its current form (status quo),

2.          abolish the Seacare scheme and transfer WHS and workers’ compensation responsibility to the state and territories, and

3.          reform of the Seacare scheme.

Under Option 1, the Seafarers Act and OHS(MI) Act would remain in place. The Seacare Authority would continue with its current role and functions, supported by Comcare. AMSA would continue as the WHS inspectorate. The existing inadequate resourcing arrangements for the Seacare Authority and AMSA would continue. The administrative action and legislative instruments made following the Federal Court’s Aucote decision will expire if not extended, which would significantly expand the coverage of the Seacare scheme with substantial cost implications for the Government.

Option 1 is not preferred as there is an urgent need to provide certainty to stakeholders over the coverage of the Seacare scheme following the Federal Court’s Aucote decision. There is also a clear need to update the Seacare scheme’s work health and safety regulation.

Under Option 2, the Seafarers Act, OHS(MI) Act and other Acts relating to the Seacare scheme would be repealed to abolish the Seacare scheme. Responsibility for seafarers’ workers’ compensation and work health and safety would be transferred to state and territory governments.

Option 2 is not preferred. It is not likely to provide any significant actual regulatory benefits to employers because they will be required to comply with state and territory workers’ compensation and work health and safety legislation. This option would take time to implement and due to legacy workers’ compensation claims the Seafarers Act would still need to be in operation for a number of years. Union stakeholders are strongly opposed to abolishing the Seacare scheme. This option is not preferred at this time given the long time it will take to achieve and stakeholder opposition.

Under Option 3, the Seacare scheme would be reformed through the introduction of amendment legislation. Reform of the Seacare scheme would broadly involve clarifying the coverage of the Seacare scheme while retaining the same scope of coverage, extending the operation of the WHS Act to the Seacare scheme, making overdue updates to the Seafarers Act, transferring the Seacare Authority’s functions to the Safety, Rehabilitation and Compensation Commission (SRCC) and Comcare and introducing a cost-recovery levy.

Option 3 is the preferred option. It addresses the most urgent problems with the current Seacare scheme. The reform option imposes a minimal regulatory cost on Seacare scheme employers, which is largely a one-off cost of transitioning to the WHS Act, while providing overall benefits from improved work health and safety outcomes.

Option 3 is expected to result in costs to Seacare scheme employers arising from the need to train officers and employees to meet their new WHS duties. It is also expected to result in costs for Seacare scheme employees from the need to obtain high risk work licences to perform certain classes of high risk work. However, clarifying the coverage of the Seacare scheme is expected to provide a benefit by reducing administration costs for Seacare scheme employers.

Overall, while uncertain, Option 3 is estimated to have an overall regulatory cost of $0.095 million per year , averaged over ten years, with regulatory costs of $0.081 million per year for employers and $0.014 million per year for employees. There are no regulatory costs or benefits for community organisations. This regulatory cost is offset by savings generated through changes to workplace gender reporting.

While Option 3 generates some regulatory cost, the proposed changes to work health and safety legislation are expected to provide non-regulatory benefits by reducing the number, and overall cost, of workplace injuries. While uncertain, the overall benefits from improved safety outcomes are estimated to be between $1.050 million and $3.750 million per year across the Seacare scheme, with the main beneficiary being workers who would avoid costs arising from workplace injuries .

The Department has engaged in significant consultation with maritime industry employers and unions, insurers and other stakeholders over proposed reform to the Seacare scheme. This includes consultation undertaken as part of and immediately following the Stewart-Crompton Review, consultation with stakeholders to test possible reforms for the Seacare scheme and a preview of the draft reform legislation. The Seacare reforms broadly reflect the findings of the Stewart-Crompton Review and the specific reform proposal incorporates feedback provided during consultations on the reform option.

The Seacare reform proposal will be implemented through the passage of legislation through the Parliament. Comcare will work closely with the Seacare Authority and SRCC to ensure a smooth transition of the Authority’s functions to the SRCC. AMSA will work with stakeholders to provide information and advice on work health and safety changes.

 



Problem Statement

This section provides information on the Seacare scheme legislative framework and issues that impact on employers and employees covered by the Seacare scheme. It outlines significant issues with the operation of the current Seacare scheme, highlighting the urgent need to reform certain aspects of the Seacare scheme.

What is the Seacare scheme?

The Seacare scheme is a national work health and safety and workers’ compensation scheme for small defined segment of the Australian maritime sector. The Seacare scheme is underpinned by a legislative framework comprising the Seafarers Act and the OHS(MI) Act.

The Seafarers Act establishes a privately underwritten workers’ compensation scheme for a defined segment of the maritime sector. Employers covered by the Seafarers Act are required to maintain an insurance policy with an approved insurer to cover workers’ compensation claims made under the Act. The Seafarers Act also establishes the Seacare Authority to oversee the operation of the Act.

The OHS(MI) Act provides a work health and safety legislative framework for largely the same part of the maritime industry as the Seafarers Act. The OHS(MI) Act confers broad oversight functions on the Seacare Authority and prescribes AMSA as the work health and safety inspectorate for the Seacare scheme. The OHS(MI) Act enables the Occupational Health and Safety (Maritime Industry) Regulations 1995 (OHS(MI) Regulations), the Occupational Health and Safety (Maritime Industry) (National Standards) Regulations 2003 (OHS(MI)(NS) Regulations) and two Codes of Practice.

The Seacare scheme is supported by the Seafarers Safety Net Fund (the Fund) which operates as a safety net ‘employer’ to provide workers’ compensation payments to employees where there is no employer against whom a claim can be made (for example, because an employer becomes bankrupt or insolvent or is wound up or ceases to exist). The Fund is maintained by a levy on employers, supported by the Seafarers Rehabilitation and Compensation Levy Act 1992 (the Levy Act) and the Seafarers Rehabilitation and Compensation Levy Collection Act 1992 (the Levy Collection Act).

Two independent reviews of the Seacare scheme ( the EY Review and the Stewart-Crompton Review) have highlighted that it needs widespread reform. The reviews found the Seacare scheme’s workers’ compensation and work health and safety arrangements are outdated and require alignment with contemporary law and practice. The reviews also found that the Seacare scheme is not sufficiently funded to be adequately administered and regulated, coverage of the Seacare scheme is unclear and its governance arrangements are inefficient.

Coverage of the Seacare scheme is unclear

The Seacare scheme is confined in scope. It has generally been understood to cover employers and seafarers on vessels which are engaged in interstate, international or intra-territorial trade or commerce.

The Seacare Authority’s 2014-15 Annual Report noted there were 6,863 seafarers and 33 employers covered by the Seacare scheme. There were 336 vessels covered, consisting of 207 vessels from the offshore sector, 88 vessels from the blue-water sector, 30 vessels from the dredging sector, and 11 vessels from other sectors (passenger or tourism for example).

There are longstanding issues regarding the coverage of the Seacare scheme that have created problems for governments, regulators, employers and seafarers. Both the Seafarers Act and the OHS(MI) Act define coverage with reference to the repealed Navigation Act 1912 (Navigation Act) and the engagement of vessels in certain types of trade or commerce. Due to the changing profile of the Australian maritime industry since the commencement of the Seafarers Act and OHS(MI) Act and the unclear nature of some terms used in those Acts, assessing whether a vessel is covered by the Seacare scheme can be difficult. It is currently the case that vessels, and the employees working on those vessels, can be covered by the Seacare scheme for some voyages but not for others, depending on the specific nature of each voyage.

The lack of clarity over coverage has significant administrative impacts for maritime industry employers. The Seafarers Act requires employers to hold a policy of workers’ compensation insurance. Employers not covered by the Seafarers Act are covered by state and territory workers’ compensation scheme. A large number of factors need to be taken into account when determining whether a vessel is covered by the Seafarers Act including the flag and ownership of a vessel, the nationalities of seafarers on-board (in particular, if at least half of the seafarers are Australian), the nature of trade and commerce of each voyage and whether the vessel falls within specified categories in the Seafarers Act.

This causes significant administrative burden for maritime industry employers. What makes it particularly difficult for employers is the fact that the current coverage test is determined on a voyage by voyage basis. This means a vessel can be covered by the Seacare scheme for one voyage and not covered for its next voyage. For these vessels, employers may also be required to purchase workers’ compensation insurance under the relevant state and territory workers’ compensation scheme.

There are significant implications for employers who fail to obtain the correct workers’ compensation coverage. If an employer ensures coverage for a vessel under a state or territory workers’ compensation scheme only and it is later found after an employee is injured, that the vessel was covered by the Seacare scheme, the employer would be required to pay compensation to the employee, in addition to the cost of the insurance policy that did not cover the liability.

While the lack of clarity over coverage creates administrative burden and other potential costs for employers, these are not understood to be significant enough to affect overall employment or business activity in the maritime industry.

The lack of clarity over coverage also has significant impacts for maritime industry employees. When an injured employee submits a claim for workers’ compensation, an employer (or their insurer) must determine if the injury occurred while the vessel on which the employee worked was covered by the Seacare scheme or not.

While it is difficult to make definitive comparisons of benefits across different workers’ compensation jurisdictions, the Seacare scheme is generally viewed as being more generous compared to state and territory workers’ compensation schemes. The doubt over coverage creates incentives for employees to make claims under the Seafarers Act, rather than under state or territory workers’ compensation schemes. Conversely, it creates incentives for employers (or their insurers) to reject claims under the Seafarers Act on the basis that the employee is covered under state schemes. Following rejection of a claim, an employee may seek a reconsideration of a decision, file an application to the Administrative Appeals Tribunal (AAT) and eventually take the matter to court.

The lack of clarity over coverage and different incentives of employee and employers manifests itself through a large number of disputed claims in the Seacare scheme. Claims that are disputed through the AAT and the courts can be costly and time consuming for both Seacare employers and employees. As Table 1 shows, the claim disputation rate, being the percentage of claims that result in an application to the AAT being filed, is five times higher for the Seacare scheme than for other workers’ compensation schemes across Australia.

Table 1: Seacare scheme claim disputation rate

Performance indicator

Seacare scheme  2012-13 performance

Seacare scheme  2013-14 performance

Australia 2013-14 performance

Claim disputation rate (number of AAT applications as a % of claims lodged)

26.7%

28.4%

5.4%

Source: Seacare Annual Report 2013-14, Comparative Performance Monitoring Report 17 th Edition, Safe Work Australia

The lack of certainty over the coverage of the Seacare scheme has been exacerbated by a decision handed down by the Full Court of the Federal Court in Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 in December 2014. The Full Court held that the Seafarers Act covered seafarers employed by a trading, financial or foreign corporation on a ‘prescribed ship’, including vessels engaged in intrastate trade. This interpretation meant that potentially over 10,000 Australian registered vessels could be covered by the Seacare scheme.

 

The Seafarers Rehabilitation and Compensation and Other Legislation Amendment Act 2015 received Royal Assent on 26 May 2015. It restored the coverage of the Seacare scheme as it was understood to be prior to the Aucote decision, but only up to the date the Act received Royal Assent.

Administrative exemptions have been issued by the Seacare Authority and the Minister for Employment has made declarations to confine the coverage of the Seacare scheme to what it was understood to be prior to the Aucote decision from the date of Royal Assent. However, these are time limited, with the Seacare Authority’s latest exemptions due to expire in March and April 2017 and the Minister’s declarations sunsetting in June 2017.

 

Workers’ compensation insurance for the Seacare scheme is expensive compared to state and territory workers’ compensation schemes. If the Seacare scheme coverage operated consistent with the Aucote decision, maritime industry employers currently covered by state or territory workers’ compensation schemes would be required to obtain workers’ compensation insurance under the more expensive Seacare scheme.

Work health and safety arrangements are outdated

The OHS(MI) Act was based on the Occupational Health and Safety Act 1991 (Cth) (OHS Act) and was broadly similar to occupational health and safety laws that applied across all states and territories at that time.

In 2012, the OHS Act was replaced by the Work Health and Safety Act 2011 (WHS Act). The WHS Act reflects the Commonwealth’s implementation of the model WHS laws, developed by Safe Work Australia (SWA) and adopted in all Australian jurisdictions except Victoria and Western Australia.

The OHS(MI) Act has not been substantially amended since its enactment and as a result is not consistent with the WHS Act or model WHS laws upon which the WHS Act is based. The OHS(MI) Act is now considerably out-of-date, contributing to the poor safety performance of the Seacare scheme.

Seacare scheme serious injury claims are higher than for other industries

Table 2 , below, shows information on the incidence of serious injury claims in the Seacare scheme compared to the Australian average. In 2012-13, the last full year for which data is available, the incidence rate of serious injury claims for the Seacare scheme (19.4 claims per 1000 employees) was significantly higher than the Australian average (11.0 claims per 1000 employees).

Table 2: Comparison of the Seacare Scheme and Australia key performance indicators

Performance indicator

 

2009-10

2010-11

2011-12

2012-13

Seacare Scheme

Serious personal injuries (per 1,000 workers)

 

30.3

30.9

25.2

19.4

Australia

Serious personal injuries (per 1,000 workers)

 

12.4

12.2

12.1

11.0

Source: Comparative Performance Monitoring Report 17th Edition, Safe Work Australia

Graph 1 shows that the incidence rate of serious injury claims for the Seacare scheme is also generally higher than that of other high risk industries such as construction, mining and agriculture. While the serious injury incidence rate for the Seacare scheme trended downwards from 2010-11 to 2012-13, the serious injury incidence rate for the Seacare scheme can be quite volatile due to its relatively small size.

 

 

 

 

 

 

 

 

 

 

 

Graph 1: Comparison of serious injury claims per 1000 employees between the Seacare scheme

and other industries

Title: Comparison of serious injuries - Description: This chart shows the comparison of serious injuries between the Seacare scheme and the Agriculture, Construction and Mining industries

Source: Safe Work Australia 17 th Comparative Performance Monitoring Report, Seacare Annual Reports

 

Seacare scheme serious injury claims are higher than for other jurisdictions

Graph 2 , below, shows the incidence rate of all accepted workers’ compensation claims (claims per 1,000 employees) by jurisdiction. It shows that while there has been a reduction in injury rates across all jurisdictions (including the Seacare scheme), there has generally been a greater reduction in serious injury rates in jurisdictions that have adopted the model WHS laws compared to Western Australia, which has not adopted the model WHS laws. Victoria (which has also not adopted the model WHS laws) was excluded from the analysis.

Graph 2: Comparison of serious injury claims per 1000 employees between the Seacare scheme and other jurisdictions

Title: WHS performance other jurisdictions - Description: This chart shows the improvement in safety for jurisdictions that have implemented the model WHS laws and Western Australia

The analysis in Graph 3 shows that there was a statistically significant change in the trend decrease of the injury incidence rate in jurisdictions that enacted the model WHS laws following enactment on 1 January 2012. Injury incidence rates have trended downward more quickly since the introduction of the model WHS laws.

Graph 3: Analysis of injury rates for model WHS law jurisdictions prior to and following implementation of model WHS laws

Title: Trend line injury performance - Description: This line shows the point where the model WHS laws were introduced in most jurisdictions Title: Analysis of injury rates for NSW/QLD/ACT/NT/Commonwealth - Description: This shows the reduction in claims for jurisdictions that have enacted the model WHS laws

For comparison, Graph 4 , below, shows the injury incidence rate for the Seacare scheme, which is not modelled in the charts above, over a similar period of time. The Seacare scheme showed a higher injury incidence rate compared to other jurisdictions. While Seacare injury incidence rates have decreased in recent years, they are well above those in jurisdictions that have adopted the model WHS laws.

Graph 4: Analysis of injury rates for the Seacare scheme

Title: Seacare injury rates - Description: This chart shows the injury rates for the Seacare scheme between 2004 and 2014-15

Note: The Seacare injury incidence rate can be highly volatile due to the small size of the Seacare scheme.

Workers’ compensation arrangements are outdated

Since the commencement of the Seafarers Act, the Australian maritime industry, workplace arrangements, health care and rehabilitation, technology, and community expectations have changed significantly. T he Seafarers Act has not kept pace with these developments. The Seafarers Act has also not kept pace with changes to other workers’ compensation legislation across Australia, including the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The retirement age in the Seafarers Act, at which point compensation benefits are no longer payable, has not been updated to reflect the increase in age of eligibility for the age pension in the Social Security Act 1991 (Social Security Act).

Both the EY Review and the Stewart-Crompton Review recommended greater alignment between the Seafarers Act and the SRC Act, consistent with the original intent when the Seafarers Act commenced. The Stewart-Crompton Review noted that there is an imperative to ensure the Seacare scheme is up-to-date and benefits from new initiatives in national workers’ compensation. 

The Stewart-Crompton Review found the costs of insuring under the Seacare scheme are high compared to other workers’ compensation Seacare schemes. It claimed some of the reasons for this are the relatively high injury incidence in the Seacare scheme and comparative difficulty in ensuring effective return to work for seafarers.

There are significant barriers preventing effective return to work for seafarers under the Seacare scheme, in particular the limited opportunities for graduated return to work or alternative duties. Incentives for return to work in the Seacare scheme are limited, with weekly benefits for total incapacity paid at 100 per cent for the first 45 weeks of incapacity and 75 per cent thereafter (capped at 150 per cent of the average weekly ordinary time earnings).

Table 3 , below, shows the return to work performance and workers’ compensation insurance premium rates of the Seacare scheme compared to the average of other Australian workers’ compensation schemes.

Table 3: Seacare scheme workers’ compensation performance

Performance indicator

Seacare scheme  performance

(2012-13)

Seacare scheme  performance

(2013-14)

Australia performance (2013-14)

Injury management and rehabilitation

Durable return to work rate (% of injured workers who have returned to work and still at work 8-9 months after injury)

59%

64%

77%

Scheme sustainability

Premium rates (average five day deductible premium equivalent rate)

2.93%

2.88%

1.48%

 

Source: Seacare Annual Report 2013-14; Comparative Performance Monitoring Report 17 th Edition, Safe Work Australia

The small size and industry-specific nature of the Seacare scheme are also likely factors contributing to high premiums.

The Seafarers Act provides for compensation payments to cease when an injured employee reaches 65 years of age (or after 12 months if the employee was injured after reaching 64 years of age). Sixty-five was the standard retirement age and the age of eligibility for the age pension for males under the Social Security Act when the Seafarers Act was enacted in 1992.

The Social Security Act has recently been amended to increase the age of eligibility for the age pension. If no amendments are made to the Seafarers Act, there will be a gap between an employee’s workers’ compensation entitlements ceasing and their eligibility for the age pension commencing.

Commonwealth, state and territory governments have agreed to introduce a National Injury Insurance Scheme (NIIS) as part of the National Disability Insurance Scheme (NDIS). The NIIS will provide minimum benchmarks for lifetime care and support for people who have sustained a catastrophic injury in the workplace. Without amendment to the Seafarers Act, the Seacare workers’ compensation scheme could be inconsistent with the minimum benchmarks of the NIIS once they are agreed.

Seacare scheme governance is inefficient

The Seacare Authority is established by the Seafarers Act. It has broad responsibilities to oversee the operation of the Seafarers Act and the OHS(MI) Act. The OHS(MI) Act specifies AMSA as the work health and safety inspectorate for the Seacare scheme.

The Seacare Authority is a non-corporate Commonwealth entity, but does not have any staff. The Authority consists of seven part-time members, including an independent Chairperson and Deputy Chairperson, the Chief Executive Officer of AMSA, two members representing employers and two members representing employees. Authority members meet on a quarterly basis. Comcare assists the Authority with the performance its functions under an arrangement contained in the SRC Act.

Many functions of the Seacare Authority for the Seacare scheme are the same as or similar to functions of the SRCC or Comcare for the Comcare scheme. It is inefficient to retain separate entities to monitor these schemes. The Seacare Authority also does not have the capacity to effectively monitor the work health and safety and return to work performance of Seacare scheme participants or administer its workers’ compensation arrangements. In contrast, the SRCC has a strong track record at regulating self-insurers under the SRC Act.

Seacare scheme administration and regulation is not adequately funded

The Seacare Authority does not receive any appropriation from the Government to perform its functions for the Seacare scheme. Comcare receives an annual appropriation of around $400,000 to provide the Seacare Authority with secretariat and administrative support to perform its functions. However, this appropriation does not cover Comcare’s full costs of providing assistance to the Seacare Authority.

Likewise, AMSA does not receive any appropriation to undertake its OHS(MI) Act function as the work health and safety inspectorate for the Seacare scheme.

There is no legislative power under the Seafarers Act or OHS(MI) Act for the Seacare Authority or AMSA to collect levies to fund the performance of their regulatory functions for the Seacare scheme. AMSA currently cross-subsidises these functions through levies collected for other purposes from ships not necessarily covered by the Seacare scheme.

It is estimated that the combined unfunded costs to Comcare and AMSA in managing the Seacare scheme under the current arrangements are around $1.6 million . This lack of resources for the Seacare Authority (and Comcare to assist the Authority) and AMSA limits their ability to ensure the effective operation of Seacare workers’ compensation and work health and safety arrangements and enforce work health and safety laws.

Both the EY Review and Stewart-Crompton Review noted that the limited resources of the Seacare Authority and AMSA are likely to limit their ability to carry out their functions under the Seafarers Act and OHS(MI) Act. Both reviews made recommendations to increase funding for the Seacare Authority and AMSA.

Objectives of Government Action

The Government’s objectives for reform of the Seacare scheme are to:

·            clarify the coverage of the Seacare scheme by having clear coverage rules that operate consistently to minimise jurisdictional uncertainty and enable maritime industry employers and employees to easily determine if they are covered by the Seacare scheme,

·            provide modern and effective work health and safety laws for maritime industry employers and workers that adequately protect workers against risks to their health and safety at work,

·            make long overdue and necessary updates to the Seacare workers’ compensation arrangements,

·            provide efficient and effective governance arrangements for the Seacare scheme, and

·            ensure that bodies responsible for Seacare scheme administration and regulation are adequately resourced to effectively monitor workers’ compensation and work health and safety arrangements and enforce compliance with work health and safety laws.



Policy options

There are three broad options considered in this RIS.

1.          Maintain the Seacare scheme in its current form (status quo).

2.          Abolish the Seacare scheme and transfer responsibility for workers’ compensation and work health and safety coverage of Seacare scheme participants to state and territory governments.

3.          Reform the Seacare scheme by making amendments to workers’ compensation, work health and safety, governance and cost recovery arrangements.

These options are outlined in more detail the following sections.

Option 1 - Status quo

This option involves no change to the current arrangements.

The Seafarers Act and OHS(MI) Act would not be amended. The Seacare scheme workers’ compensation and work health and safety arrangements would continue with significant differences compared to other Commonwealth and state and territory workers’ compensation and work health and safety schemes.

The coverage of the Seacare scheme would continue to be confined by the making of legislative instruments by the Minister for Employment and exemptions issued by the Seacare Authority, or would significantly expand if these were not continued.

The Seacare Authority would continue to oversee the Seacare scheme, assisted with the performance of its functions by Comcare, while AMSA would continue to be the work health and safety inspectorate. Both the Seacare Authority and AMSA would continue without any additional funding for the performance of their regulatory functions.

Option 2 - Abolishing the Seacare scheme

This option involves repealing the Seafarers Act, OHS(MI) Act, Levy Act and Levy Collection Act together to abolish the Seacare scheme. Without the Seafarers Act or OHS(MI) Act, responsibility for workers’ compensation and work health and safety coverage of Seacare scheme participants would transfer to state and territory governments.

Option 3 - Reform of the Seacare scheme

This option would involve introducing a number of Bills into Parliament to reform the Seacare scheme. 

The Seafarers Act would be amended to:

·            clarify the scope of coverage of the Seacare scheme and provide clear coverage rules that operate consistently to minimise jurisdictional uncertainty,

·            align the retirement age, at which workers’ compensation benefits cease being payable, with the age of eligibility for the age pension in the Social Security Act,

·            accommodate expected minimum benchmarks of the NIIS,

·            ensure continued compliance with the International Labour Organization Maritime Labour Convention, and

·            incorporate a number of necessary amendments previously made to the SRC Act that were not reflected through corresponding amendments to similar provisions in the Seafarers Act.

The OHS(MI) Act would be repealed and the WHS Act would be extended to the Seacare scheme.

The Seacare Authority’s statutory functions would be transferred to the SRCC and Comcare to provide more efficient and effective governance of the Seacare scheme.  AMSA would remain the work health and safety inspectorate.

Finally, a mechanism to implement a cost recovery levy and fees would be introduced. This would enable the Government to recover the costs of the SRCC, Comcare and AMSA undertaking their regulatory functions for the Seacare scheme.

These reform proposals are outlined in more detail below.

Coverage

To address the Seacare scheme’s longstanding coverage issues, a new coverage test is proposed. The new coverage test would retain substantially the same scope of coverage - as it was understood to be prior to the Aucote decision - but provide greater certainty to maritime industry representatives over when a vessel and its employees are, or are not, covered by the Seacare scheme. The new test would also reduce jurisdictional uncertainty by ensuring that vessels are continually covered, or not covered, by the Seacare scheme rather than moving in and out of the Seacare scheme depending on the particular voyage being undertaken .

The Seacare scheme would cover all Australian registered vessels and all foreign vessels with a majority Australian crew, except for those vessels which are wholly or predominantly engaged in voyages and other tasks within the coastal waters of a single state or territory.

There would be exclusions for recreational vessels, inland waterways vessels, fishing vessels, tourism vessels, floating production storage and offloading vessels (FPSOs) (from workers’ compensation coverage only) and government vessels (so long as they are crewed by Government employees). The new test would also treat vessels operating in the Northern Territory in the same way as vessels operating in any state. Currently, all ‘prescribed ships’ operating within a territory are covered by the Seacare scheme, unless they have an exemption from the Seacare Authority.

To provide flexibility, the ability for the Minister to make legislative instruments to declare that a vessel is, or is not, a ‘prescribed ship’ will be retained. A mechanism to allow maritime industry employers not covered by the Seacare scheme to ‘opt in’ to the coverage of the Seacare scheme through an application to the SRCC will also be introduced. This will enable employers with some vessels in the Seacare scheme and some in state or territory schemes to elect to have all of their vessels covered by the Seacare scheme.

Work Health and Safety

At present, to avoid regulatory overlap, the WHS Act does not apply to any vessel or structure to which the OHS(MI) Act applies. To align work health and safety arrangements in the Seacare scheme with the WHS Act, and the model WHS laws upon which the WHS Act is based, the OHS(MI) Act would be repealed and the Commonwealth WHS Act amended to extend its application to the Seacare scheme (other than facilities located in offshore areas), to the exclusion of state or territory work health and safety laws.

As a consequence of repealing the OHS(MI) Act and extending the application of the WHS Act to the Seacare scheme, the Work Health and Safety Regulations 2011 (WHS Regulations) and approved Codes of Practice made under the WHS Act would also apply, although their implementation would be delayed for the Seacare scheme.

The duties and requirements in the WHS Act and WHS Regulations are broad based and are capable of applying to a range of sectors, industries and businesses. The section of the maritime industry that is covered by the Seacare scheme is not significantly different from other industries that are covered by general Commonwealth, state or territory work health and safety laws to justify the continuation of separate work health and safety arrangements. Maritime industry employers not currently covered by the OHS(MI) Act already operate under general work health and safety laws in the states and territories.

Health and Safety duties

The WHS Act provides a similar duty-based regime to the OHS (MI) Act, which aims to minimise risks to the health and safety of persons employed on vessels while they are at work. The OHS(MI) Act requires an operator of a ‘prescribed ship’ or ‘prescribed unit’ to take all reasonable steps to protect the health and safety at work of seafarers.

The WHS Act requires a ‘person conducting a business or undertaking’ (PCBU) to ensure, so far as is reasonably practicable, the health and safety of workers. The duty to ensure health and safety requires the person to eliminate or otherwise minimise risks to health and safety so far as is reasonably practicable. This includes first considering what can be done - that is, what is possible in the circumstances for ensuring health and safety - and then whether it is reasonable in the circumstances to do all that is possible. The standard of ‘reasonably practicable’ is not new in work health and safety legislation and there is extensive case law and guidance surrounding its application.

Table 4 outlines how the primary and upstream duties within the WHS Act would apply to PCBUs operating vessels. Table 5 outlines how duties would apply to individuals, including officers of a PCBU, workers and other persons at a workplace.

Key differences between the OHS(MI) Act and the WHS Act

Tables 6 to 13 outline key differences between the operation of the WHS Act and the OHS(MI) Act.



Table 4: Primary and upstream duties of care

Duty

WHS Act

How the duty would apply in the Seacare scheme

Duty to ensure the health and safety of workers

Section 19(1)

A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person, and workers whose activities in carrying out the work are influenced or directed by the person, while workers are at work in the business or undertaking.

 

PCBUs (operators) will owe duties to the extent that business or undertaking is being conducted on a vessel.

State work health and safety laws would not apply to PCBUs to the extent that the business or undertaking is being conducted on a vessel.

State work health and safety laws would apply to stevedoring companies that load and unload a ship, including if that requires sending workers on-board the vessel.

Duty to ensure health and safety of other persons

Section 19(2)

A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

PCBUs (operators) will owe duties to the extent that business or undertaking is being conducted on a vessel.

Duties would extend to persons on and off the vessel that may be put at risk from work carried out on the vessel.

State work health and safety laws would not apply to PCBUs.

Duty of persons with management or control of a workplace

Section 20

The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.

 

Person with management or control of a workplace means a PCBU to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace.

Applies to PCBUs with management or control of a vessel.

State work health and safety laws would not apply to the PCBU.

Duty of persons with management or control of fixtures, fittings or plant at a workplace

Section 21

The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.

Applies to PCBUs with management and control of fixtures, fittings or plant on a vessel.

State work health and safety laws would not apply to the PCBU.

Designers, manufacturers, importers or suppliers of plant, structures or substances

Sections 22-25

A PCBU who is a designer, manufacturer, importer or supplier of a plant, structure or substance that is to be used, or could reasonably be expected to be used, at a workplace must ensure all workplace activity relating to it including its handling or construction, storage, dismantling and disposal is, so far as is reasonably practicable, to be without risks to health or safety when used for its intended purpose.

These duties apply to PCBUs that design, manufacture, import or supply plant, structures or substances used on vessels.

As PCBUs might supply the same or similar products to vessels and onshore workplaces, state and Commonwealth WHS laws will apply concurrently to PCBUs that design, manufacture, import, or supply plant, structures or substances.

Duties of people installing, constructing or commissioning plant or structures

Section 26

A PCBU who installs, constructs or commissions plant or structures must also ensure, so far as is reasonably practicable, all workplace activity relating to the plant or structure including its decommissioning or dismantling is without risks to health or safety.

These duties apply to PCBUs that install, construct or commission plant or structures on vessels.

As PCBUs might install the same or similar products to vessels and onshore workplaces, state and Commonwealth work health and safety laws will apply concurrently to PCBUs that install plant, structures or substances.

 

Table 5: Duties on Individuals

Duty

WHS Act

How the duty would apply in the Seacare scheme

Duty of officers

Section 27

An officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

 

 

Would apply to officers within the meaning of section 9 of the Corporations Act 2001. An officer would be a person who makes, or participates in making, decisions that affect the whole or a substantial part of the business or undertaking (i.e. a member of the Board), not just the part of a business or undertaking being conducted by a particular vessel (i.e. the master of a ship would not be an officer).

Duty of workers

Section 28

While at work, workers must take reasonable care for their own health and safety and that of others who may be affected by their actions or omissions. They must also comply, so far as they are reasonably able, with any reasonable instruction given by the PCBU to allow the PCBU to comply with work health and safety laws, and cooperate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

Applies to all workers carrying out work on the vessel including contractors and subcontractors, employees of labour hire companies, apprentices and trainees.

Duty of other persons at the workplace

Section 29

A person at a workplace must take reasonable care of their own health and safety and that of others who may be affected by their actions or omissions. They must also comply, so far as they are reasonably able, with any reasonable instruction that is given by the PCBU to comply with work health and safety laws.

Applies to other persons on the vessel, including passengers and workers of stevedoring companies.

 

Table 6: Additional Duties

Duty

WHS Act

How the duty would apply in the Seacare scheme

Duty of Officers

Under the WHS Act, an officer of a PCBU must exercise due diligence to ensure the PCBU complies with its health and safety duties. This duty relates to the strategic, structural, policy and key resourcing decisions.

There is no similar duty in the OHS(MI) Act. While operators have primary duties in the OHS(MI) Act, officers of the operator do not have specific duties.

In the maritime industry, ‘officers’ are more akin to on-shore managers and would not normally work on-board vessels

Duty of other persons at the workplace

Any person at a workplace, including customers and visitors, must take reasonable care of their own health and safety and that of others who may be affected by their actions or omissions. They must also comply, so far as they are reasonably able, with any reasonable instruction that is given by the PCBU to comply with work health and safety laws.

There is no similar duty in the OHS(MI) Act, however a common law duty would apply.

Duty on designers

The WHS Act places a duty on designers of plant, substances and structures.

There is no similar duty in the OHS(MI) Act.

Duties of persons engaged in loading or unloading a ship/unit

There is no similar duty in the WHS Act, however the WHS Act imposes duties on PCBUs that supply, install etc. to a workplace. State work health and safety laws would apply to stevedoring companies that load and unload a ship, including if that requires sending workers on-board the ship.

Under the OHS(MI) Act, there is a specific duty for a person engaged in the loading or unloading of a ship/unit to take all reasonable steps to ensure that the ship/unit is not loaded or unloaded in such a way that it is unsafe for others or constitutes a risk to their health and safety.



 

Table 7: Offences and penalties

Offence/Penalty

WHS Act

OHS(MI) Act

Breaches of the Act

Breaches of duties of care are criminal offences. Breaches of right of entry provisions are subject to civil remedies, consistent with the Fair Work Act 2009.

Civil proceedings can also be brought in relation to discriminatory conduct for a prohibited reason under section 112 of the Act.

The OHS(MI) Act also has criminal offences for breaches of duties of care, but there are no civil penalties under the OHS(MI) Act.

Penalties

The maximum monetary penalty is $3,000,000 for a corporation and $600,000 for an individual.

Breaches of duty of care may also incur imprisonment. The maximum period of imprisonment available for the most serious breach of the Act is five years.

The maximum monetary penalty is 1000 penalty units (currently $170,000) for operators or 50 penalty units (currently $8,500) for employees. The maximum period of imprisonment (for specified breaches) is six months, but this does not apply for a serious breach of a duty of care.

Sentencing options

In addition to fines and custodial sentences, the WHS Act provides for remedial orders, adverse publicity orders, training orders, injunctions, orders for restoration, work health and safety project orders, and the release of an offender under terms of a court-ordered WHS undertaking.

Sentencing under the OHS(MI) Act is limited to monetary penalties.

Infringement notices

The WHS Act contains provisions to establish an infringement notice scheme. The Commonwealth has not established such a scheme.

The OHS(MI) Act does not contain provisions establishing an infringement notice scheme.

Enforceable undertakings

The WHS Act provides that the Regulator may accept a written undertaking given by a person in connection to a contravention or alleged contravention by a person of this Act (Part 11 section 216). The Regulator may also apply to a court for an order if a person contravenes an enforceable undertaking (section 220)

There is no ability for the regulator to accept enforceable undertakings under the OHS(MI) Act.



 

Table 8: Incident notification

Requirement

WHS Act

OHS (MI) Act

Incident notification

A PCBU must ensure that the regulator is notified immediately after becoming aware that a notifiable incident (death of a person, or serious injury or illness of a person, or a dangerous incident) arising out of the conduct of the business or undertaking has occurred. The Act also outlines what is a serious injury or illness and what is a dangerous incident.

There are similar provisions in the OHS(MI) Act, although there is no requirement to notify the regulator immediately. The meaning of the terms and timing and form of reports is prescribed in regulations (currently 4 hours, or as soon as reasonably practicable afterwards, for notification).

 

 

 

 

 

 

 

 

Table 9: Duties to consult, cooperate and coordinate

Duty

WHS Act

OHS(MI) Act

Duty to consult with other duty holders

The WHS Act places a duty on the PCBU to consult etc., so far as is reasonably practicable, with all other persons who have a duty in relation to the same matter.

This requires duty holders with shared responsibilities to work together to protect the health and safety of workers and other persons.

There is no statutory requirement under the OHS(MI) Act to consult with other duty holders, however consultation may be necessary in order for duty holders to discharge their duties under the Act.

 

 

Duty to consult workers and their representatives

The WHS Act places a duty on a PCBU to consult, so far as is reasonably practicable, with workers. The duty is not limited to employees but extends to contractors.

The WHS Act also prescribes what is required for consultation purposes and when it is required.

This requires PCBUs to consult with workers and their representatives over work health and safety matters and give workers a reasonable opportunity to express their views, raise work health and safety matters and contribute to decisions on work health and safety matters.

The OHS(MI) Act places a duty on the operator of a prescribed ship or unit to take all reasonable steps to develop an OHS policy in consultation with involved unions.



Table 10: Representation and participation

Requirement

WHS Act

OHS(MI) Act

Establishment of work groups

The WHS Act provides that a work group may be determined for workers engaged in two or more businesses or undertakings.

Due to the broad definition of worker, workers other than ‘employees’ such as contractors and labour hire workers can be members of a work group.

A PCBU must if asked by a worker include the worker’s representative in negotiations about the workgroup.

Under the OHS(MI) Act, a request to an operator to enter into consultations to establish a designated work group in respect of employees of the operator on a prescribed ship or unit may be made by an employee or union (if there is one involved). An operator has the right to enter into consultations at any time if they believe that a designated work group should be varied. The designated work group is comprised only of employees.

Health and Safety Representatives (HSRs)

The WHS Act provides that a worker may ask that the PCBU facilitate the conduct of an election for one or more HSRs to represent workers.

A HSR holds office for a period of three years.

Under the OHS(MI) Act, only one HSR may be selected for each designated work group and holds office for two years.

Training of HSRs

The WHS Act provides that a PCBU must, if requested, allow the HSR to attend training (currently 5 days) that is approved by the Regulator (Comcare); and is a course that the HSR is entitled to attend; and that it is chosen by the HSR in consultation with the PCBU.

The OHS(MI) Act requires a HSR to undertake a course of training  accredited by the Seacare Authority but does not specify the number of days.

Power to issue Provisional Improvement Notices (PINs)

The WHS Act provides HSRs with the power to issue PINs provided that the HSR has consulted the person receiving the PIN.

The HSR cannot issue a PIN unless the HSR has completed relevant training.

PINs may be issued by leaving the notice with the person with management and control of the workplace to which the notice relates, or by delivering the notice at the person’s usual place of business.

A HSR may issue a PIN to a person in command.

While a HSR must be trained, they may issue PINs before undertaking training.

 

Issue resolution

The WHS Act provides that parties to a work health and safety issue must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with an agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the Regulations.

Where an issue cannot be resolved after reasonable efforts have been taken, the issue can be transferred to the Regulator to arrange for an inspector to attend the workplace to assist in resolving the issue.

There are no specific provisions for issue resolution in the OHS(MI) Act, although there are provisions dealing with disagreements in relation to the establishment or variation of work groups and directions to stop unsafe work.

Right of worker to cease unsafe work

The WHS Act provides that a worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard.

The OHS(MI) Act allows HSRs to direct that unsafe work cease in certain circumstances but does not provide individual workers with that right.

 

Table 11: Discriminatory, coercive and misleading conduct.

Requirement

WHS Act

OHS(MI) Act

Prohibition of discriminatory, coercive or misleading conduct

The WHS Act has wide ranging provisions that prohibit a person directly or indirectly engaging in discriminatory conduct for a prohibited reason.

Criminal or civil action may be taken in respect of this provision. Reverse onus of proof applies in this provision.

The OHS(MI) Act includes similar provisions prohibiting discriminatory conduct, but ‘discriminatory conduct’ and ‘prohibited reason’ are more narrowly defined. 

Reverse onus of proof applies. A contravention may incur a financial penalty, but penalties are significantly lower under the OHS(MI) Act compared to the WHS Act.



Table 12: Union right of entry

Requirement

WHS Act

OHS(MI) Act

Workplace entry by permit holders

The WHS Act confers powers on authorised representatives of unions (work health and safety permit holders) to enter workplaces for OHS purposes.

A work health and safety entry permit holder may enter a workplace to inquire into a suspected contravention of the WHS Act (without notice), or to consult and advise relevant workers who wish to participate in the discussions on work health and safety matters (with at least 24 hours’ notice of entry).

There are no right of entry provisions in the OHS(MI) Act, although operators are subject to right of entry provisions in the Fair Work Act.

 

 

 

Table 13: Review of decisions

Requirement

WHS Act

OHS (MI) Act

Internal review

The WHS Act provides for a two-stage review process of certain decisions (e.g. issuing of statutory notices by an inspector), starting with internal review followed by external review by the Fair Work Commission.

The OHS(MI) Act does not provide for internal review but provides for external review by the Fair Work Commission.



Regulations

The OHS(MI) Regulations set out administrative matters relating to the elections for HSRs, forms for PINs and other notices and procedures and forms for notifying and reporting incidents. The (OHS(MI)(NS) Regulations set out requirements relating to hazardous substances (limited to scheduled carcinogenic substances), manual handling and confined spaces.

The WHS Regulations specify the way in which some duties under the WHS Act must be met and prescribe procedural or administrative requirements to support the WHS Act. They cover a wide range of matters relating to WHS, including the matters covered by the OHS(MI)(NS) Regulations outlined above.

As a consequence of repealing the OHS(MI) Act and extending the WHS Act to apply to the Seacare scheme, the Regulations made under the WHS Act and the approved Codes of Practice will also apply, although their operation may be modified (for example, phased in) or removed for the Seacare scheme.

Like the WHS Act, the requirements and guidance in the WHS Regulations are broad based and are capable of applying to a range of sectors, industries and businesses. Some of the WHS Regulations will not be relevant to maritime activities and will have no effect on Seacare scheme participants. Most of the chapters of the WHS Regulations will be relevant for Seacare scheme participants.

The WHS Regulations will be phased in over a period of time. Only WHS Regulations that have broad application or are similar to those that apply currently will be applied from 1 July 2017.  

Further discussions will be held with Seacare stakeholders over the next two years to discuss the phasing in of the WHS Regulations, with a view to them commencing from 1 July 2019.

Codes of Practice

Codes of Practice provide practical guidance on how to meet the standards set out in the WHS Act and Regulations. They are admissible in court proceedings as evidence of what is reasonably practicable in the circumstances for a duty holder to meet their obligations under the WHS laws. They can also be referred to by an inspector when issuing an improvement or prohibition notice.

There are two Codes of Practice under the OHS(MI) Act. The Seacare Authority Code of Practice 1/2000 (Seacare Code) adopts in identical terms the Australian Offshore Support Vessel Code of Safe Working Practice and the Code of Safe Working Practice for Australian Seafarers issued by AMSA. The Approved Code of Practice for Manual Handling (Maritime Industry) provides practical guidance relating to managing the risks arising from manual handling in a maritime environment.

There are 23 approved Codes of Practice made under the WHS Act, which adopt model WHS Codes agreed by a majority of work health and safety Ministers. Some Codes of Practice provide guidance relevant to all industries (e.g. How to Manage Work Health and Safety Risks ) or on issues covered in existing Seacare Codes (Hazardous Manual Tasks), while others will not be relevant to maritime activities (Demolition Work). By repealing the OHS(MI) Act and extending the WHS Act to the Seacare scheme, current Codes of Practice made under the OHS(MI) Act would cease to have effect, while Codes of Practice made under the WHS Act would apply to the Seacare scheme.

Similar to the WHS Regulations, only WHS Codes of Practice that have broad application will be applied from 1 July 2017. Further discussions will be held with Seacare stakeholders over the next two years to discuss the phasing in of the remaining WHS Codes of Practice, with a view to them commencing from 1 July 2019.

 

Workers’ Compensation

Addressing Inconsistencies between the Seafarers Act and SRC Act

The Seafarers Act was aligned with the provisions in the SRC Act when it was first passed in 1992 but has not kept pace with the workers’ compensation changes in in the SRC Act. 

The Stewart-Crompton Review recommended changes to the Seafarers Act to give effect to a list of inconsistencies identified by Comcare between the Seafarers Act and the SRC Act. The Stewart-Crompton Review also listed entitlement provisions in the Seafarers Act that had been identified separately during the Review as needing to be made consistent with the SRC Act.

Most of these inconsistencies would be addressed under this option. This would include clarifying the meaning of some terms, e.g. that an ‘action for non-economic loss’ is not limited to formal legal proceedings but can include settlement negotiations, and the meaning of ‘medical treatment’ and ‘superannuation scheme’. These clarifications would not have any financial impact on employers or workers, but would assist both with interpreting certain provisions of the Seafarers Act.

It is proposed that the Seafarers Act threshold for compensation for hearing loss will be reduced from 10% to 5% binaural the permanent impairment of hearing loss, consistent with the SRC Act. The limit for reasonable funeral expenses would also be increased from $5,838.09 to $10,735.29 to be consistent with the SRC Act.

The workers’ compensation changes, including both addressing inconsistencies with the SRC Act and other technical changes, are listed below.

Table 14: Seafarers Act amendments

Definitions

‘action for non-economic loss’ - s 3

Clarifies an action for non-economic loss is not restricted to the formal institution of proceedings but can include processes like settlement negotiations and consultations.

‘medical treatment’ - s 3

 

Enables legislative rules to be made to include a wider range of compensable medical treatment.

‘superannuation scheme’

- s  3

Extends the definition of superannuation scheme to include retirement savings accounts, reflecting updated approaches to superannuation arrangements.

Benefit changes

Payment of medical related expenses - s 28

Enables reimbursement of medical related expenses (at the direction of the employee) to the medical treatment provider or the employee if they have paid for the treatment.

Reduction in threshold for binaural hearing loss  to improve access to compensation for injuries resulting in permanent impairment - s 40

Reduces the qualifying threshold for a permanent impairment that is a binaural hearing loss from 10% to 5% to align with the SRC Act and other jurisdictions.

Increase to death benefit

- s 30(2)

Aligns the maximum amount of compensation payable in respect of funeral expenses with the SRC Act.

Improvements to Seacare scheme integrity

Clarification that dependents of deceased employees have access to common law remedies against the employer of the deceased

- s 54

Clarifies that where an employee’s injury results in death, the dependants of the deceased employee are not prevented from bringing an action against the employer, even where the employee may have made a previous election.

Clarification of employees ability to bring action for non-economic loss

- s 55

Clarifies that an election by an employee to institute an action or proceeding against their employer or another employee does not prevent the employee from doing any other thing that constitutes an action for non-economic loss.

Clarification of requirements in relation to proceedings and consequences of election and payment of damages

- ss 56-60

Aligns provisions with the SRC Act by substituting references to ‘proceedings’ with the broader term of ‘claims’. ‘Claims’ encompasses settlements resulting from negotiation whether or not that claim or action progressed to the formal institution of proceedings or was made at common law. 

Changes to eligibility thresholds

Injury which is a disease - contribution of employment to shift from the ‘material degree’ to a ‘significant degree’ - s 3 and new s 5B

Increases threshold to align with the SRC Act. Employment must contribute to disease suffered by employee to a ‘significant degree’ rather than ‘material degree’.

This measure is likely to be opposed by some stakeholders but is intended to form part of a balanced approach to updating the Seacare scheme to align with the Comcare scheme and a number of the States. 

Psychological injuries- exclusions - shift from ‘reasonable disciplinary action’ to ‘reasonable administrative action’

- new s 5A

 

The Seafarers Act currently excludes compensation for injuries as a result of ‘reasonable disciplinary action’ or an employee’s ‘failure to obtain a promotion, transfer or benefit’. This definition will be replaced with the concept of ‘reasonable administrative action taken in a reasonable manner’. A new section will also be added providing a non-exhaustive list of the actions which may constitute ‘reasonable administrative action’. This will align with the SRC Act.

This broader exclusion is not anticipated to have a significant impact because of the low number of claims for psychological injury in the sector.

Other technical changes

Updates to references to other Commonwealth legislation - s 135

 

Updates references to other Commonwealth legislation - the Child Support (Registration and Collection) Act 1988 , the Social Security Act, and the Family Law Act 1975 - to reflect current practice regarding the treatment of compensation payments for the purposes of assignment and attachment.

Removal of redundant references

References to “industry panel”, “Seafarers Engagement Centre” and “industry trainee” will be removed from provisions. 

Administrative Appeals Tribunal - Costs - s 91

Clarifies that the AAT may order claimants costs where determination about eligibility for compensation is reconsidered by a determining authority on its own motion and proceedings are rendered abortive.

Age pension

It is proposed that the Seafarers Act be amended to accommodate recent amendments to the age of eligibility for the age pension in the Social Security Act, and any future amendments, by replacing references to specific ages with references to ‘pension age’. This would ensure that the age at which injured employees cease to be eligible to receive workers’ compensation will align with the age at which they are eligible to receive the age pension.

Attendant Care for Catastrophic Injuries

The Seafarers Act would be amended to allow for the introduction of the National Injury Insurance Scheme (NIIS), which will provide minimum benchmarks for lifetime care and support for employees who have sustained a catastrophic injury in the workplace. The amendments would enable caps on attendant care and household services to be removed for employees with a catastrophic injury.

The new provision would not come into effect until the benchmarks are set and rules have been made defining the meaning of ‘catastrophic injury’.

Journey Claims

The Seafarers Act would be amended to provide that an injury suffered by an employee while travelling at the direction or request of their employer, for the purpose of their employment will not be treated as having arisen out of, or in the course of, their employment, in the circumstances set out. These circumstances include where for a personal or domestic reason:

·            the employee delayed commencing the journey;

·            the employee used a route that was not direct; or

·            there was an interruption in the journey.

The exception to this is that an employee may delay or interrupt their journey with the written agreement of their employer, provided that the delay or interruption is not more than 72 hours.

Cost Recovery Levy and Fees

Governments generally recoup costs of work health and safety schemes by requiring participants to financially contribute to the cost of the system under which they are being regulated, whether through application fees, regulatory levies, directly paying the regulator when investigations are undertaken or workers’ compensation premiums. However, the Seacare scheme does not require Seacare scheme participants to financially contribute to the cost of being regulated by the Seacare scheme.

The existing Levy Act and Levy Collection Act provide for the collection of a Safety Net Fund Levy from Seacare scheme employers. Levy amounts are paid into the Safety Net Fund (the Fund), which provides compensation for injured employees whose employer has defaulted on compensation liabilities. The levy is calculated based on the number of seafarer berths on the first day of each quarter.

Under the reform option, a mechanism would be introduced to enable the Government to charge a levy to recover the SRCC, Comcare and AMSA’s costs for undertaking their regulatory functions for the Seacare scheme.

It is proposed that the Levy Act and Levy Collection Act will be repealed and replaced with new Acts. The new Acts will provide a mechanism to charge and collect both the existing Safety Net Fund levy (to be renamed the Seafarers’ Insurance Levy) and a new cost recovery levy. The Safety Net Fund levy will initially be set at its existing level ($15 per seafarer berth). The cost recovery levy will initially be set at $0. Following consulation with industry stakeholders, the Government will determine if a levy should be charged and, if so, at what level it should be set.

The Seafarers Insurance Levy and cost recovery levy (when charged) would be calculated and collected in the same way as the existing Safety Net Fund levy (calculated per seafarer berth on the first day of a quarter).

Cost recovery fees would also be introduced to recover costs incurred by AMSA, the SRCC and Comcare for a limited range of services provided directly to Seacare scheme participants, such as processing applications for exemptions from the Seacare scheme. Fees will be collected by the entity providing the service.

Governance

On 15 December 2014, as part of its Smaller Government Reform Agenda, the Government announced its intention to transfer the statutory functions of the Seacare Authority to the SRCC. 

A direct transfer of the Seacare Authority’s functions to the SRCC would result in the SRCC performing certain functions under the Seafarers Act that are performed by Comcare, rather than the SRCC, under the SRC Act. It would not be appropriate or efficient for the SRCC to perform functions for the Seacare scheme that it does not perform for the Comcare scheme. To address this issue, it is proposed that these functions of the Authority be transferred directly to Comcare, rather than the SRCC.

The current SRCC membership includes:

•           an independent Chair,

•           three representatives of unions,

•           a representative of the Commonwealth,

•           a representative of licensees,

•           a representative of members and former members of the Defence Force,

•           a representative of Australian Capital Territory public sector employers,

•           the Chief Executive Office of Safe Work Australia, and

•           a member with qualifications or experience relevant to the SRCC’s functions.

It is proposed that the membership of the SRCC not be amended to include representatives of maritime industry or unions. However, to ensure that maritime industry representatives have an opportunity to provide advice and contribute to decision making affecting the Seacare scheme, the Chairperson of the SRCC will be empowered to establish a Seacare Advisory Group (the Advisory Group).

The Advisory Group would include individuals representing Seacare employers and maritime unions. Its role would be to provide advice to the SRCC and Comcare on matters affecting the operation of the Seacare scheme, including the granting of opt-in declarations and exemptions from coverage, the amount of any cost recovery levy and the development of Codes of Practice.

 



Impact Analysis

This section outlines the impact and non-regulatory benefits and costs of each option on Seacare scheme employers, employees and the Government.

Option 1 - Status Quo

This option does not impose any additional regulatory cost on Seacare scheme employers or others. Seacare scheme participants continue with existing arrangements with which they are familiar.  However, this option does nothing to address the problems with the Seacare scheme. Opportunities to achieve more efficient and effective oversight of the Seacare scheme and benefits through improved work health and safety outcomes and greater clarity over the coverage of the Seacare scheme are lost.

As per Australian Government policy, the impacts and regulatory costs of options 2 and 3 are determined relative to this option.

Option 2 - Abolish the Seacare scheme

Work Health and Safety

If the OHS(MI) Act was repealed, employers would no longer have to comply with the specific duties and regulatory requirements imposed by the OHS(MI) Act and regulations made under that Act. However, they would be required to comply with similar duties and regulatory requirements after transferring to coverage by state and territory work health and safety legislation.

Most states and territories have work health and safety legislation based on the model WHS laws, which is expected to provide superior safety outcomes to the OHS(MI) Act. It is to be expected that employers and employees would benefit from improved safety outcomes by transitioning from the OHS(MI) Act to state and territory work health and safety legislation based on the model WHS laws. There would be fewer injuries to employees, resulting in lower costs for employers (and their insurers) from workers’ compensation for injured workers and costs of replacing injured workers. Workers would also benefit from reduced injury incidence through greater income from working than what they would receive through workers’ compensation while injured, elimination of costs from workplace injuries that are not covered by workers’ compensation and significantly improved quality of life from not suffering a serious injury.

Since the Commonwealth WHS Act is also based on the model WHS laws, employers and employees would be expected to achieve the same benefits from improved safety outcomes after transferring to coverage by state and territory work health and safety laws as they would after transferring to the Commonwealth WHS Act (as proposed in Option 3).

Workers’ Compensation

If the Seafarers Act was repealed, employers would no longer be required to obtain workers’ compensation insurance from a private sector insurer or pay workers’ compensation under the Seafarers Act. They would not be required to perform functions associated with managing claims for workers’ compensation under the Seafarers Act. They would also not be required to provide information to the Seacare Authority about workers’ compensation insurance arrangements or employee numbers for the purpose of the Safety Net Fund levy.

Employers would transfer to state and territory workers’ compensation schemes, which have similar requirements to the Seafarers Act for employers to obtain workers’ compensation insurance and pay compensation, manage claims and provide information to a regulator.

On average, insurance premiums are lower in state and territory schemes than in the Seacare scheme, although premiums for maritime industry employers may be higher than average given the high risk nature of the work. T here is likely to be a long-term overall benefit for Seacare employers from repealing the Seafarers Act and moving into state and territory workers’ compensation schemes from paying lower premiums to obtain workers’ compensation insurance. There may also be a benefit for employers who currently are required to have separate insurance coverage to meet legal obligations under both Commonwealth and state workers’ compensation laws. 

While it is difficult to make definitive comparisons of benefits across different workers’ compensation jurisdictions, the Seacare scheme is generous compared to state and territory workers’ compensation schemes (especially compared to states where the total amount paid in weekly compensation payments is capped). Some employees may experience a reduction in workers’ compensation benefits under state and territory workers’ compensation schemes, compared to what they would have received under the Seacare scheme. The overall amount of this reduction has not been quantified because of the complexities of calculating differences in compensation amounts, including weekly compensation and permanent impairment compensation, between the Seacare scheme and each state and territory scheme.

Economic factors affecting the Australian maritime industry, in particular employers in the current Seacare scheme, include domestic demand for transported goods (both domestically produced goods and imported goods), international demand for domestically produced goods (including goods produced with the assistance of vessels) and costs (labour and workers’ compensation costs). 

While this option is expected to provide an overall benefit to employers from reduced workers’ compensation insurance costs (from transferring to state and territory workers’ compensation Seacare schemes and improved safety outcomes), in isolation of any changes to broader economic factors affecting the Australian maritime industry or other costs, this option is not expected to have any significant impact on the size of the Australian maritime industry, the nature of the industry or employment opportunities in the industry.

Option 3 - Reform of the Seacare scheme

Coverage

Clarifying coverage as proposed would have limited financial impact on employers since no changes to the scope of coverage are proposed and only limited changes to the test for determining coverage are proposed. While  the proposed changes would remove coverage for ‘prescribed ships’ operating in the Northern Territory (unless they meet other coverage criteria), this is not expected to have any significant impact on the coverage of the Seacare scheme since a number of vessels operating solely within the Northern Territory maintain exemptions from the Seacare scheme.

Employers (both in and outside of the Seacare scheme) and employees would benefit from clearer coverage provisions that make it easier for them determine if they are covered by the Seacare scheme, and need to obtain insurance under the Seacare scheme, or not. This would be expected to reduce costs for employers from determining coverage for their vessels and reduce the number of claims that are disputed over coverage matters.

Benefits are outlined further in the Regulatory Costs chapter. This proposal is not expected to have any broader effects on the Australian maritime industry or Seacare employers, but will address a current administrative burden of Seacare employers and a number of other maritime industry employers.

Work Health and Safety

Impacts of the WHS Act on Seacare Employers and Workers

Extending the WHS Act to the Seacare scheme would be expected to have significant overall benefits for employers and employees compared to retaining the OHS(MI) Act by improving safety outcomes.

The WHS Act comprises modern, up to date work health and safety laws and facilitates the implementation of modern work health and safety practices. The OHS(MI) Act, on the other hand, contains outdated laws that were designed for workplaces of the early 1980s and 1990s.

The WHS Act encourages safety leadership in workplaces. It provides a positive duty on officers to exercise due diligence on work health and safety matters. This duty is not included in the OHS(MI) Act. To ensure compliance with this duty, Seacare employers would be expected to offer training to their officers (as defined in the WHS Act, not necessarily seafarers whose position includes the word ‘officer’) to ensure that they understand their duty and exercise due diligence on work health and safety matters within their organisation.

Seacare employers would also be expected to offer short training to all workers to ensure that they have an understanding of their duties under the WHS Act and how the WHS Act operates in comparison to the OHS(MI) Act. The duties of workers are broadly similar to those of the OHS(MI) Act, so the training is not expected to be extensive.

The regulatory costs to employers of training officers and other staff on their duties under the WHS Act and the operation of the WHS Act are outlined further in the Regulatory Costs chapter.

There are no provisions for right of entry for union officials in the OHS(MI) Act. Under the proposal to expand the coverage of the WHS Act to include the Seacare scheme, union officials representing Seacare employees who hold a right of entry permit would be able to exercise right of entry on  Seacare vessels for work health and safety purposes to inquire into a suspected contravention of the WHS Act or to consult and advise workers. This is not expected to impose regulatory costs for employers since union officials can already exercise right of entry on Seacare vessels under the Fair Work Act 2009 .

The WHS Act includes a number of differences from the OHS(MI) Act that would be expected to influence employer and employee behaviour to improve safety outcomes, without creating additional regulatory costs.

The WHS Act facilitates shared responsibility for health and safety matters by requiring duty holders to, so far as is reasonably practicable, consult, cooperate and coordinate activities with each other. This would explicitly require Seacare employers to consult etc. with other duty holders where they share responsibility for a health and safety matter. This requirement is not expected to have any regulatory impact on employers as currently under the OHS(MI) Act employers would be required to consult etc. with other duty holders to discharge their duty..

Compared to the OHS(MI) Act, the WHS Act includes substantially higher maximum penalties for breaches of work health and safety duties. The maximum penalty under the WHS Act is $3 million for a corporation and $600,000 for an individual, compared to $180,000 for operators and $9,000 for employees under the OHS(MI) Act. Breaches of duties of care may also incur imprisonment under the WHS Act. These substantially higher maximum penalties under the WHS Act would be expected to be much more effective at deterring employer non-compliance with work health and safety duties compared to the penalties in the OHS(MI) Act and contribute substantially to improving safety outcomes.

The WHS Act also provides for a wider range of tools for facilitating a graduated approach to compliance and enforcement, compared to the OHS(MI) Act. Under the OHS(MI) Act, only monetary penalties can be ordered against employers. In addition to fines and custodial sentences, the WHS Act provides for remedial orders, adverse publicity orders, training orders and other sentences to enforce compliance with work health and safety laws. These alternative sentencing methods would be expected to enhance the ability of the courts to enforce compliance with work health and safety laws and encourage ongoing compliance, improving safety for workers.

The WHS Act also provides additional mechanisms to achieve compliance with work health and safety laws. It would enable AMSA to accept enforceable undertakings from employers in connection to a contravention (or alleged contravention) of work health and safety laws to enforce compliance. This mechanism would be expected to enhance the ability of AMSA enforce compliance with work health and safety laws, improving safety for workers, while reducing the need for AMSA to prosecute employers for alleged contraventions to achieve compliance.

The benefits from improved safety outcomes expected from expanding the coverage of the WHS Act to include the Seacare scheme are quantified below in a later section.

There are other benefits for employers from the proposal to expand the coverage of the WHS Act to include the Seacare scheme. Adopting work health and safety laws based on the model WHS laws that apply in most jurisdictions [1] would enable Seacare employers to implement national policies and procedures applying to all their employees Australia-wide, including employees that work on-board vessels not covered by the Seacare scheme and employees that are not seafarers.

The proposal would also have a number of direct impacts on employees and other workers covered by the Seacare scheme, particularly in relation to representation and participation in work health and safety matters. Under the OHS(MI) Act, one employee may be elected as a HSR for a designated work group. The elected employee HSR must be provided with training to perform their role, which is funded by Seacare employers. A HSR may issue a PIN to a person in command in relation to safety issues on-board a vessel.

Under the proposal to expand the coverage of the WHS Act to include the Seacare scheme, more than one employee HSR may be elected, but there will be no automatic requirement for an elected HSR to receive employer-funded training. Instead, an elected HSR may request training from the employer. Following such a request, the employer must organise for the HSR to receive training and fund the training. Only a HSR that has received training may issue a PIN.

These impacts are not expected to introduce any regulatory costs for employers or employees. Current HSRs who have received training would be considered to be trained under the WHS Act (there would not be any need for them to receive additional training). It is not expected that these changes would result in an additional number of HSRs seeking employer-funded training compared to existing arrangements. Employees in a work group will be able to elect additional HSRs, which may assist with improving safety, without adding regulatory costs for employers since it is only compulsory for an employer to arrange training for an employee if they request it.

Under the OHS(MI) Act, HSRs can direct that unsafe work cease, but there is no right for individual workers to cease unsafe work. As a result of expanding the coverage of the WHS Act to the Seacare scheme, employees would have a right to cease, or refuse to carry out, work if they have a reasonable concern that carrying out the work would present a serious health and safety risk. This change may improve safety outcomes for workers.

AMSA, the work health and safety inspectorate for the Seacare scheme, will also benefit from being able to draw on the resources, expertise and experience of other work health and safety regulators who apply same laws. This will assist AMSA to communicate with Seacare employers and employees on work health and safety matters and build knowledge and expertise in compliance and enforcement of work health and safety laws based on the model WHS laws.

Specific Impacts of the WHS Regulations and Codes of Practice

The application of the WHS Regulations and Codes of Practice will facilitate the WHS Act improving safety outcomes, which is expected to benefit employers, employees and the community.

Since only the WHS Regulations that are similar to those that apply currently will be applied from 1 July 2017, they are not expected to impose any regulatory burden on employers in addition to the regulatory burden imposed by the existing regulations that apply to the Seacare scheme. Further discussions on the application of the remaining WHS Regulations will be held with Seacare scheme employers and employees over the next two years, with a view to phasing in the application of the WHS Regulations after two years with appropriate modifications for the Seacare scheme.

The most significant impact on employers and employees from the implementation of the WHS Regulations would be from the introduction of a licensing scheme to regulate the performance of specified classes of high risk work. This would require employees who perform certain classes of high risk work to obtain a high risk work licence perform that work.

It is expected that current employees who perform the specified classes of high risk work would already have completed the training necessary to perform the work and obtain a licence, but are not likely to have the licence since there is no current requirement under the OHS(MI) Act and OHS(MI)(NS) Regulations for them to hold a licence. Current employees, and new employees from the time of introduction, who perform this high risk work would be required to obtain licenses from state and territory work health and safety regulators.

The regulatory costs to employees from obtaining high risk work licenses to perform certain classes of high risk work are outlined further in the Regulatory Costs chapter. Employers would be required to ensure that any employee performing a class of high risk work holds the required licence, although this is not expected to impose any regulatory burden on employers. The introduction of high risk work licensing may also support improved safety outcomes.

Codes of Practice do not impose on employers an additional regulatory burden to the WHS Act and Regulations. They provide guidance on how the requirements of the WHS Act and Regulations can be met. Employers can apply different approaches than outlined in a Code of Practice to meet the WHS Act and Regulations requirements if they achieve at least an equivalent standard of safety.

Benefits from Improvements in Safety Outcomes

Improving safety outcomes in the Seacare scheme would have significant benefits for Seacare scheme employers and employees. Workers’ compensation premiums for employers (and their insurers) would be expected to decrease. There would be less time lost due to injury and employers would avoid costs associated with replacing employees either temporarily or permanently employees. Workers would benefit through greater income from working than what they would receive through workers’ compensation while injured, elimination of costs from workplace injuries that are not covered by workers’ compensation and significantly improved quality of life from not suffering a serious injury. The community would benefit from reduced costs of funding medical expenses of injured seafarers.

The RIS for the introduction of model WHS laws across Australia suggested that the minimum expected reduction in workplace injuries resulting from alignment with model WHS laws would be at least 1.4 per cent. [2]

Given the current work health and safety performance of the Seacare scheme and reduction in safety incidents following the implementation of the model WHS laws, it is reasonable to expect that expanding the WHS Act to include Seacare will have some positive impact on work health and safety performance for the Seacare scheme. The estimate of 1.4 per cent is used in this analysis as the lower-bound of reduced work safety incidents from Seacare scheme alignment.

One stakeholder suggested that the reduction in workplace injuries could be in the order of 5 per cent to 10 per cent. This estimate is reasonable given other estimates of the impact of implementing aspects of the model WHS laws and outcomes observed in those jurisdictions that have implemented the model WHS laws. The reported reduction in safety incidents achieved in those jurisdictions that have implemented the model WHS laws is also modelled by the experience in NSW, which made certain changes to its work health and safety legislation in 2001 that were later adopted in the model WHS laws. This was reported in 2006 to deliver a 9 per cent reduction in safety incidents. [3]

The estimate of 5 per cent, based on the lower estimate provided by the stakeholder, is used in this analysis as the upper bound of reduced work safety incidents from Seacare scheme alignment.

The costs of work-related injuries are borne by employers, workers and the community. In 1995, the Industry Commission [4] (now the Productivity Commission) estimated that only 25 per cent of the total cost of work-related injury and disease was due to the direct costs of work-related incidents (for example, workers’ compensation premiums paid by employers or payments to injured workers from compensation schemes). The remaining 75 per cent related to indirect injury costs such as loss of productivity, loss of income and quality of life. This 1:3 direct to indirect cost ratio was considered a conservative estimate as not all indirect costs could be quantified. Subsequent reports by the National Occupational Health and Safety Commission and SWA have refined the method for calculating indirect costs but have not specified a new ratio. To address the underestimation of indirect costs, a slightly higher ratio of 1:4 is often applied, although this does vary by sector and severity of injury from as low as 1:2 to as high as 1:50. [5]

The more conservative 1:4 ratio is used to estimate the indirect safety benefits from aligning the Seacare scheme, since there is not sufficient data to directly calculate these indirect costs and so as not to overestimate the potential safety benefits. When adjusting for this ratio, the overall benefits from improved safety outcomes associated with the proposed changes are estimated to be between $1.050 million-$3.750 million per year across the Seacare scheme.

In 2012, SWA estimated that the cost of workplace injuries borne by employers was 16 per cent of the total cost of workplace injuries, the cost borne by the community is 10 per cent, and the cost borne by workers is 74 per cent (using an ex-ante approach to estimating costs). [6] If benefits of the proposed changes are shared in the same manner, the changes are estimated to provide benefits of $0.168-$0.600 million per year for employers ($5,000-$18,000 per employer per year), $0.777-$2.775 million per year for workers and $0.105-$0.375 million per year for the community.

The estimated benefits to Seacare scheme employers from improvements in safety outcomes are expected to significantly outweigh the estimated compliance costs of implementing the WHS Act, since the benefits are ongoing while the expected compliance costs are estimated to be minor and are mostly upfront costs. However, in isolation of any changes to broader economic factors affecting the Australian maritime industry or other costs, these benefits are not expected to have any significant impact on the size of the Australian maritime industry, the nature of the industry or employment opportunities in the industry.

Worker’s Compensation

No significant changes to the Seafarers Act workers’ compensation arrangements are proposed under this option. On that basis, this option is not expected to have any significant costs or benefits for Seacare employers and employees. Seacare employers will continue to be required to obtain workers’ compensation insurance and the changes proposed are not expected to have any significant impact on the cost of this insurance. However, some of the changes will have minor impacts on the eligibility of employees for compensation, amounts of compensation paid to employees and the age up to which they can receive compensation.

The proposal to reduce the threshold for compensation for hearing loss potentially provides a benefit to employees by enabling some to receive compensation for hearing loss that are not eligible under the current Seafarers Act. However, there are very few claims for hearing loss in the Seacare scheme. It is included in the Seacare Authority 2014-15 Annual Report in the ‘other’ claims group, which made up only 8 per cent of the 173 claims made during the year. On that basis, this change would not be expected to have a significant aggregate impact for employers or employees.

The proposal to increase the limit for reasonable funeral expenses also potentially provides a benefit to the families of deceased employees. However, there have only been two reported deaths in the Seacare scheme in the previous five years. On that basis, this change would also not be expected to have a significant aggregate impact for employers or employees (or the families of workers).

The proposal to increase the Seafarers Act threshold for level of contribution to injury for diseases to be compensable from a ‘material degree’ to a ‘significant degree’ potentially has a cost for some employees who would be eligible to receive compensation under the current Seafarers Act by making them ineligible to receive compensation. However, the number of claims for compensation in the Seacare scheme for disease-related injuries is small. This change may impact as little as one or two claims, so it would not be expected to have a significant aggregate impact on employers or employees.

The proposal to align the retirement age in the Seafarers Act with the age of eligibility for the age pension in the Social Security Act would benefit employees by enabling them to receive workers’ compensation under the Seafarers Act for a longer period of time. This would meet a possible gap when no entitlements are paid between an employee’s workers’ compensation entitlements ceasing and their eligibility for the age pension commencing.

This overall benefit of these changes for injured employees is estimated to be around $0.1 million per year . This represents a transfer from employers (and their insurers) to employees.

Given the minor and technical nature of the proposed workers’ compensation changes and limited expected impacts, these changes are not expected to have any broader impacts on Seacare scheme employers of the Australian maritime industry.

Attendant Care for Catastrophic injuries

The financial impact of the NIIS has been assessed by Treasury as part of its RIS for the introduction of the NIIS.

This amendment would provide a significant potential benefit for employees in the Seacare scheme who suffer a catastrophic injury at work. They would be entitled to lifetime, uncapped attendant care and household services through the NIIS and NDIS. These services are subject to caps of $251.94 each per week under the current Seafarers Act.

The aggregate benefit for employees is expected to be limited. Compensation for attendant care and household services is currently estimated to be only 0.1 per cent of compensation paid under the Seacare scheme, which equates to around $0.015 million per year. It is not clear how much this would be expected to increase (which would represent benefits to employees) following the introduction of the NIIS, since this would depend on whether the care provided to current recipients is adequate to meet their needs.

Cost Recovery Levy and Fees

The introduction of a cost recovery levy would represent a cost for employers. This cost would be a new cost, since Seacare scheme employers do not currently contribute to the cost of the Seacare scheme’s administration and regulation (they pay a levy to maintain the Safety Net Fund).

The impact of the cost recovery levy would depend on if and when the Government chooses to charge the levy and what rate the levy is set at. If set too high, there is some risk that the increase in costs for Seacare employers could reduce their competitiveness, potentially decreasing the number of employers and vessels in the Seacare scheme and reducing employment opportunities in the Australian maritime industry.

The Government will consult with Seacare scheme employers to fully understand the impact of any proposed levy prior to implementing it. If the Government chooses to impose a levy, the Government could assist Seacare employers to manage the cost impact by phasing the levy in over a number of years. The levy would not fully cost recover the costs of administering and regulating the Seacare scheme while it is being phased in.

It is proposed that the Seafarers Insurance Levy and cost recovery levy, when charged, would be calculated and collected in the same way as the existing Safety Net Fund levy (calculated per seafarer berth on the first day of a quarter). This would ensure there is no additional regulatory burden on employers from changes to the Levy Act and Levy Collection Act to introduce a mechanism for charging a cost recovery levy (once the Government decides to charge it).

The impact of cost recovery fees on employers is expected to be around $0.060 million per year (in total across the Seacare scheme).

Governance

The transfer of the Seacare Authority’s functions to the SRCC and Comcare is estimated to result in savings of approximately $10,000 for the Government as a result of no longer paying the Chairperson’s daily sitting rate or travel costs of Seacare Authority members. The Advisory Group will not have any costs since members will not be remunerated.

This change is not expected to have any impact on Seacare employers or employees.

 



Regulatory Costs

In accordance with Australian Government policy, the cost burden of new national regulation, whether arising from new regulations or changes to existing regulation, must be quantified using its Regulatory Burden Measurement framework.

Option 2 - Abolishing the Seacare scheme

The repeal of the Seafarers Act, Levy Act and Levy Collection Act would result in regulatory savings for employers from not having to purchase a workers’ compensation insurance policy. Averaged over ten years, it is estimated that this benefit for employers would be around $26.8 million per year ($812,000 per employer for the 33 current Seacare scheme employers).

The repeal of the OHS(MI) Act would also result in regulatory savings for employers. However, no estimate of this saving is provided for this RIS. Calculating this saving would require estimating the total regulatory cost for Seacare employers of protecting the health and safety of their employees, including the activities outlined above. It is also complicated by the fact that in the absence of the OHS(MI) Act and without any other work health and safety coverage, Seacare employers would still owe a common law duty of care to their employees. To satisfy this duty, employers would likely continue to undertake a number of measures to protect the health and safety of their employees. Seacare employers may also be required under other instruments, such as enterprise agreements, to consult with their employees on work-related matters, such as health and safety.

Table 15 - Regulatory Burden and Cost Offset Estimate Table - Option 2

·                      Average annual regulatory costs (from business as usual)

·                      Change in costs ($ million)

·                      Business

·                      Community organisations

·                      Individuals

·                      Total change in costs

·                      Total, by sector

·                      -$26.8

·                      N/A

·                      N/A

·                      -$26.8

As per Australian Government policy, the regulatory costs of complying with state or territory government regulation are not considered in the estimates and discussion above. The estimates above reflect the regulatory cost of complying with Seacare workers’ compensation and work health and safety legislation.

The actual regulatory saving of this option is likely to be significantly less than outlined above, and there may not be any actual regulatory saving, since Seacare scheme employers would have to comply with state or territory government workers’ compensation and work health and safety legislation. State and territory legislation workers’ compensation and work health and safety legislation imposes similar regulatory requirements to the Seacare scheme. Depending on arrangements developed for winding down the Seacare scheme, it is also possible that former Seacare scheme employers may have to simultaneously manage long-tail claims made under the Seacare scheme prior to the repeal of the Seafarers Act, which would also result in ongoing regulatory costs for former Seacare employers.

Employers would likely incur one-off regulatory costs from transitioning to a state or territory workers’ compensation and work health and safety scheme, such as building an understanding of new legislative requirements and processes and obtaining a workers’ compensation insurance provider. These are estimated to be approximately $50,000 in total across the Seacare scheme.

 

Option 3 - Reform of the Seacare scheme

Benefits

There would be minor benefits for employers from clarifying the coverage of the Seacare scheme, since it would be simpler for them to determine coverage of a vessel, which will reduce the time it takes to determine whether an injured employee was covered by the Seacare scheme at the time of their injury. Averaged over a ten year period, it is estimated that clarifying the coverage of the Seacare scheme would result in regulatory savings for Seacare scheme employers of approximately $0.005 million per year across the Seacare scheme.

Costs

The Department engaged PwC to collect and analyse data on the benefits and costs of aligning the OHS(MI) Act with the WHS laws through interviews with businesses and industry representatives. An analysis of the key differences between the OHS(MI) Act and the WHS Act was undertaken. The differences were then further split into those that were deemed by PwC to have a significant impact on costs and those that would likely have no significant impact. Consideration of the significance of differences was informed by the findings of the Stewart-Crompton Review and consultations with stakeholders.

Stakeholders indicated there would be one-off and ongoing costs incurred as a result of the proposed changes.

The one-off costs were:

·          training for staff to help them understand the changes, and

·          licence costs for certain classes of high-risk work (existing staff).

The ongoing costs were:

·          licence costs for certain classes of high risk work (for new staff).

Officers

Stakeholders expected to incur one-off costs associated with training of ‘officers’ in relation to their due diligence responsibilities under the WHS Act. It is estimated that this would consist of around one day of training, for an average of 10 officers per organisation. Costs would include course costs, staff time and food, as well as travel and accommodation for half of the participants.

The one-off cost to employers of additional training for officers is estimated to be around $528,000 across the Seacare scheme ($16,000 per employer).

All other seafarers (workers)

Stakeholders expected to incur one-off costs associated with bringing all seafarers up to speed with their new responsibilities under the WHS Act. It is estimated this would consist of updating online training modules, and providing verbal communication and written material. On average, it was estimated to take around half an hour per worker.

The one-off cost to employers of training existing seafarers on the new WHS laws is estimated to be around $334,000 across the Seacare scheme ($10,000 per employer).

High risk work licensing

The WHS Regulations require certain work, or classes of work, to be carried out only by or on behalf of a person who is licensed. Since the OHS(MI)(NS) Regulations do not currently require any class of work to be carried out by a person who is licensed, it is not proposed that high risk work licensing be introduced immediately for the Seacare scheme. Instead, f urther discussions on the application of these regulations would be held with Seacare scheme employers and employees with a view to phasing in high risk work licensing after two years.

Stakeholders were of the view that individuals required to perform high risk work would already have completed the relevant training. As many seafarers work across jurisdictions with different safety requirements, employers in many cases have required seafarers to be trained to satisfy the highest possible standards that could be encountered.

While seafarers may have already undertaken the relevant training to perform high risk work, some seafarers may not possess the licence associated with the training. One business indicated that approximately 50 per cent of its seafarers would undertake high risk work in the applicable classes and potentially require a licence.

Assuming that current employees performing high risk work do not require further training to obtain a licence, the one-off cost to current employees of obtaining licences is estimated to be $79,000  across the Seacare scheme when high risk work licensing is introduced. The ongoing cost of obtaining licences from that time for new employees is estimated to be $8,000 per year.

In total, averaged over a ten year period, it is estimated that regulatory costs arising from abolishing the OHS(MI) Act and extending the coverage of the WHS Act to the Seacare scheme would be approximately $0.100 million per year . These include costs of $0.086 million per year for employers (around $0.003 million per employer) from providing training on the WHS Act and $0.014 million per year for employees from obtaining high risk work licences required under the regulations.

Net Regulatory Costs

Reform of the Seacare scheme has an estimated regulatory cost of $0.095 million per year , averaged over ten years. This includes regulatory costs of $0.081 million per year for employers ($0.003 million per employer) and $0.014 million per year for employees. There are no regulatory costs for community organisations.



 

Table 16: Regulatory Burden and Cost Offset Estimate Table

·                      Average annual regulatory costs (from business as usual)

·                      Change in costs ($ million)

·                      Business

·                      Individuals

·                      Community Organisations

·                      Total change in costs

·                      Total, by sector

·                      $0.081

·                      $0.014

·                      N/A

·                      $0.095

 

 

 

 



Conclusion and Recommendations

Option 1 - Status Quo

There are significant problems with the current Seacare scheme that make retaining the status quo not a feasible option.

The lack of clarity over the coverage of the Seacare scheme presents significant issues for Seacare employers and employees and other maritime industry participants that are only likely to get worse over time as the maritime industry continues to evolve.

It is assumed that the Seacare Authority exemptions and declarations made by the Minister in response to the Federal Court’s Aucote decision, which significantly expanded the coverage of the Seacare scheme, would be renewed to continue to limit the coverage of the Seacare scheme. However, if this were not the case and the Federal Court’s expansive interpretation of the coverage applied, this would have a massive cost impact for maritime industry employers previously covered by state workers’ compensation Seacare scheme, who would have to obtain insurance under the more expensive Seacare scheme, and the Government, which would be required to regulate the significantly larger Seacare scheme.

The work health and safety performance of the Seacare scheme is below that of other jurisdictions and other high risk industries. The Seacare work health and safety laws, provided in the OHS(MI) Act, are outdated and not aligned with contemporary work health and safety law and practice. With no change to the OHS(MI) Act, it is not expected that there would be any significant improvements in work health and safety performance in the Seacare scheme the near future, although current trends of improving performance may continue.

Changes to the age of eligibility for the age pension are scheduled to come into effect from 1 July 2017. The NIIS is also expected to be implemented in the near future. With no changes to the Seafarers Act, there will be a gap between when injured employees cease being eligible for compensation under the Seafarers Act and when they become eligible to receive the age pension. The Seacare scheme would also likely be inconsistent with the minimum benchmarks of the NIIS, once agreed.

The Seacare Authority, Comcare and AMSA are not adequately funded to effectively administer and regulate the Seacare scheme. With no change to existing arrangements, this issue will continue.

Given the urgent need to provide certainty to stakeholders over the coverage of the Seacare scheme following the Federal Court’s Aucote decision and ensure alignment with the age of eligibility for the age pension and minimum benchmarks of the NIIS, as well as the clear need to update the Seacare scheme’s work health and safety laws, retaining the status quo is not preferred. All stakeholders agree that reform of the Seacare scheme is necessary and overdue.

Option 2 - Abolish the Seacare Scheme

The small size of the Seacare scheme also suggests that maintenance of a separate workers’ compensation and work health and safety Seacare scheme may be unwarranted.

 

In 2004 the Productivity Commission noted that it sees little justification for maintaining industry-specific workers’ compensation schemes where workers in one industry are subject to substantially different arrangements compared with other workers in the same state. [7]

Since workers’ compensation insurance under the Seacare scheme is expensive compared to state and territory workers’ compensation schemes, industry representatives support abolishing the Seacare scheme.

It is estimated that Seacare employers would obtain a regulatory saving of $26.8 million per year as a result of not having to obtain a policy of insurance under the Seacare scheme. However, this does not reflect the full regulatory costs of this option. Employers would incur costs from obtaining workers’ compensation insurance under state and territory workers’ compensation schemes. Workers’ compensation costs are generally cheaper in state and territory schemes compared to the Seacare scheme. However, employers would also incur transition costs and it may also be necessary for employers to continue to manage long-tail liabilities from the Seacare scheme, resulting in additional costs. These costs may erode much of the regulatory saving outlined above.

While it is difficult to compare compensation entitlements across jurisdictions, the Seacare scheme is relatively generous compared to state and territory schemes. Some employees may experience a reduction in workers’ compensation benefits under state and territory workers’ compensation schemes, compared to what they would have received under the Seacare scheme. Because of the potential costs for employees, union stakeholders are strongly opposed to abolishing the Seacare scheme.

Improvements in work health and safety outcomes and reductions in workers’ compensation costs for employers could be achieved by abolishing the legislation that establishes the Seacare scheme and moving Seacare employers and employees into state or territory workers’ compensation and work health and safety schemes. Employers and employees would benefit from improved safety outcomes by transitioning from the OHS(MI) Act to state and territory work health and safety legislation based on the model WHS laws. Since the Commonwealth WHS Act is also based on the model WHS laws, this benefit is equivalent to the benefit that would be expected from improved safety outcomes in option 3.

While this option could potentially have some cost saving for the Government, implementing it would require extensive consultation and negotiation with Seacare employers and employees, insurers and state and territory governments. Arrangements for managing long tail Seacare claims, including claims against the Safety Net Fund (where there is no longer an employer to claim against), would need to be considered. Stakeholders would face continued uncertainty over the coverage of the Seacare scheme while arrangements to abolish the Seacare scheme are developed. Urgent issues such as the potential gap in eligibility for the age pension and the implementation of the NIIS would also go unaddressed.

This option is also not preferred. Actual regulatory benefits, once costs of transitioning to state and territory workers’ compensation schemes are considered, are uncertain. Due to the long-tail nature of the Seacare scheme, it would need to remain in operation for a number of years. While benefits from improved safety outcomes would be expected, these would be equivalent to those expected from option 3. This option would take time to implement and issues requiring urgent action would not be addressed in the meantime. Certain stakeholders are also strongly opposed to this option.

Option 3 - Reform of the Seacare Scheme

This option would provide much needed certainty to maritime industry employers and employees over the coverage of the Seacare scheme. It would provide clear coverage rules that operate consistently to minimise jurisdictional uncertainty and enable maritime industry employers and employees to easily determine if they are covered by the Seacare scheme.

The OHS(MI) Act is significantly out of date and has a number of deficiencies compared to the WHS Act. The OHS(MI) Act has more specific application and its objects are more operationally directed than aimed at continuously improving safety. Its definitions and duties of care have narrower scope. Penalties for breaching work health and safety legislation are much lower in the OHS(MI) Act.

Retaining industry-specific work health and safety legislation for the Seacare scheme is unnecessary. Expanding the scope of the Commonwealth WHS Act to include the Seacare scheme would align the Seacare scheme’s work health and safety arrangements with the model WHS laws that have been adopted in all states and territories (except Victoria, which has legislation similar to the model WHS laws, and Western Australia, which is moving to adopt substantial amounts of the model WHS laws). The duties and requirements of the WHS Act are broad based and capable of applying to a range of industries. The Seacare scheme is not significantly different from other industries which fall under Commonwealth, state or territory work health and safety legislation based on the model WHS laws.

Expanding the scope of the WHS Act to include the Seacare scheme is expected to have some minor regulatory costs for employers and employees, which are mostly upfront costs related to training on the WHS Act and obtaining high risk work licences. However, it is expected to provide significant ongoing benefits to employers, employees and the broader community by improving safety outcomes. Unions and Seacare employers support adopting the WHS Act for the Seacare scheme.

This option would make generally minor amendments to the Seafarers Act to ensure consistency with the SRC Act, upon which it was originally based. However, one of the amendments would align the age at which injured employees cease to be eligible for workers’ compensation with the age of eligibility for the age pension in the Social Security Act. This would ensure there is no gap between eligibility for workers’ compensation and the age pension when changes to the age of eligibility for the age pension commence. Another amendment would ensure allow for the introduction of the NIIS by enabling caps on attendant care and household services to be removed for employees with a catastrophic injury. These amendments are urgently required to align the Seacare scheme with recent policy decisions of the Government affecting the Seacare scheme.

This option would provide for more efficient and effective governance of the Seacare scheme by transferring the Seacare Authority’s functions to the SRCC, Comcare and AMSA. The ability of the Chairperson of the SRCC to establish an Advisory Group will ensure that industry continues to have input on the operation of the Seacare scheme. This option would also introduce a mechanism to charge a cost recovery levy on Seacare employers that would enable the Government to recover the SRCC, Comcare and AMSA’s costs of administering and regulating the Seacare scheme. Cost recovery would ensure that the SRCC, Comcare and AMSA have sufficient financial resources to perform their administrative and regulatory functions for the Seacare scheme.

Reform of the Seacare scheme the recommended option. It addresses the most urgent problems with the current Seacare scheme with only a minimal regulatory cost on Seacare scheme employers and employees, who are expected to benefit significantly over time from improved work health and safety outcomes.

 



Consultation

Seacare reform has been the subject of extensive consultation with stakeholders over a number of years.

Reviews and Reform Discussions

EY and Stewart-Crompton Reviews

The EY Review and Stewart-Crompton Review included consultation with stakeholders. 

The Stewart-Crompton Review was conducted over six months from October 2012 to March 2013. In November and December 2012, thirteen meetings were held across Australia with a number of stakeholders, including industry representatives and employers, maritime unions, government agencies and insurers. A discussion paper was also released publicly for comment, with 13 submissions from this stakeholder group. Following the release of the review report, the Department held further consultations with these stakeholders to discuss the recommendations.

The EY Review was conducted over a short period of time in April and May 2005, with reviewers having three weeks to consider submissions, conduct stakeholder consultations, formulate recommendations and complete the report. Meetings were held with relevant Commonwealth government agencies, state workers’ compensation authorities, industry representatives, maritime unions, law firms and insurers. A total of 16 organisations were consulted. One hundred and seventy seven written submissions were received. Over 160 of these were common letters signed by individual seafarers.

Consultation on Seacare Reforms

More recently, the Department held five one-day workshop consultations with stakeholders between May and August 2015 to discuss possible reforms to the Seacare scheme. Workshop were held on coverage, governance, work health and safety and workers’ compensation arrangements, with two workshops held to discuss coverage given the complexity of the matter. These consultations included industry representatives and employers, maritime unions and relevant Commonwealth government agencies (many of the attendees were Seacare Authority members or deputies). For each workshop consultation, the Department of Employment distributed a paper outlining issues raised in the Stewart-Crompton review and possible approaches to improve the Seacare scheme. Stakeholders were invited to comment on the proposed approaches and offer alternative proposals.

On 21 December 2015, the Department released a consultation RIS outlining proposed reforms to the Seacare scheme for public comment. The Department wrote to Seacare Authority members and key stakeholders who had been involved in the workshop consultations to inform them of its release and to ask that they make their members aware of its release. The Department also published advertisements in national and specialist media and social media alerts through January to alter the public to the release of the consultation RIS. The submission period ran for six weeks until 5 February 2016, although late submissions were accepted and considered.

Fifteen submissions in total were received from industry representatives and employers engaged in the Great Barrier Reef Tourism industry, insurance providers and maritime unions. During the submission period, the Department also held a meeting with industry representatives and insurers to further discuss the proposed reforms. The Department attempted to arrange a similar meeting with maritime unions but received no response.

Legislation Previews

In March and April 2016, the Department held two closed previews of draft Seacare reform legislation with representatives of organisations represented on the Seacare Authority (and their deputies), including industry representatives, employers and maritime unions. The purpose of the previews was for stakeholders to review the technical detail of the legislation to ensure there were no unintended consequences and comment on the policy positions proposed.

At the first meeting, stakeholders were asked to review and provide feedback on the draft legislation over one day. Following stakeholder concerns that there was not sufficient time to adequately review the draft legislation, a second meeting was organised that was held over two days, with stakeholders reviewing the draft legislation on the first day and providing feedback on the second. 

Stakeholder Views on Options

Information on stakeholder views on each of the reform proposals and how proposals were developed in response to stakeholder feedback is provided below.

Option 1 - Status Quo

Stakeholder views on the need for reform of the Seacare scheme have developed since the EY Review. During the EY Review, industry representatives (generally) and unions supported the Seacare scheme, although both identified areas for improvement of the Seacare scheme such as clarifying the coverage of the Seacare scheme, providing greater access to redemptions and increasing funding for Seacare scheme administrators and regulators.

During the Stewart-Crompton Review, stakeholders identified the same issues raised in the EY Review and more areas for improvement of the Seacare scheme. While many stakeholders were supportive of the Seacare scheme, all suggested improvements. The Stewart-Crompton Review’s 68 recommendations for improvements to the Seacare scheme demonstrated a consensus among stakeholders for the need for reform of the Seacare scheme, although there was not agreement among stakeholders on the nature of the required reforms.

Following the Federal Court’s Aucote decision, industry representatives highlighted an urgent need for reform of the Seacare scheme to clarify the coverage of the Seacare scheme. During the recent consultations held by the Department, all stakeholders agreed on the need for reforms of the Seacare scheme to clarify its coverage, modernise its work health and safety legislation and improve the governance of the Seacare scheme. No stakeholder argued that the Seacare scheme should be retained in its current form without modification.

Based on all consultation that has taken place, there is clear consensus from industry representatives and maritime unions that maintaining the status quo is not a feasible option and reform of the Seacare scheme is necessary.

Option 2 - Abolish the Seacare scheme

During the EY Review, a small number of industry representatives and insurers supported abolishing the Seacare scheme.  The EY Review proposed abolishing the Seacare scheme as one of two options to modernise workers’ compensation and work health and safety regulation for Seacare scheme employers and employees, with the other option being reform of the Seacare scheme. No stakeholder proposed abolishing the Seacare scheme during the Stewart-Crompton Review, although this option was outside the review’s terms of reference.

During recent consultations held by the Department, industry representatives raised concerns about the high cost of workers’ compensation insurance under the Seacare scheme compared to state and territory workers’ compensation schemes. They consider that there is no need for a separate workers’ compensation and work health and safety scheme for this defined part of the maritime industry. The Seacare scheme is unusual being an industry-specific workers’ compensation scheme.

Industry representatives support abolishing the Seacare scheme and transferring Seacare employers and employees to state and territory workers’ compensation and work health and safety schemes. An insurer stakeholder also expressed support for this option. Industry representatives acknowledged some complexity with abolishing the Seacare scheme, but did not regard this complexity as insurmountable. Seacare scheme employers would likely achieve some cost savings from this option.

Maritime unions, however, expressed strong opposition to this option. They consider it would result in a reduction in workers’ compensation entitlements for employees. While it is difficult to compare benefits between workers’ compensation schemes, some employees may experience a reduction in workers’ compensation entitlements if transferred to state and territory workers’ compensation schemes. Rather than abolishing the Seacare scheme, unions consider that the Seacare scheme should be expanded to cover a greater proportion of the Australian maritime industry.

Option 2 in this RIS would give effect abolishing the Seacare scheme. Based on all consultation that has taken place, there is support for this option, although it is limited to industry representatives. This option is strongly opposed by unions.

Option 3 - Reform of the Seacare Scheme

Coverage

The lack of clarity over coverage of the Seacare scheme has been raised as a key issue by stakeholders in both the EY Review and Stewart-Crompton Review of the Seacare scheme and in recent consultations undertaken by the Department.

During the EY Review and Stewart-Crompton Review, stakeholders raised a number of concerns over the clarity of coverage of the Seacare scheme and suggested a number of different approaches to resolve these issues. Maritime unions submitted proposals that would expand the coverage of the Seacare scheme to a greater proportion of the Australian maritime industry.

Based on stakeholder views, the EY Review suggested removing the Seafarers Act and OHS(MI) Act links with the Navigation Act for determining coverage. An alternative approach to defining coverage based on the tonnage of a vessel was also suggested. The Stewart-Crompton Review also recommended removing links to the Navigation Act. It further recommended not reducing the coverage of the Seacare scheme, allowing employers to opt in to the Seacare scheme and allowing vessels to seek an exemption from coverage by the OHS(MI) Act as well as the Seafarers Act.

For workshop consultations on coverage, the Department provided stakeholders with a number of options for clarifying the coverage of the Seacare scheme. One option involved reform of the existing coverage, where links to the Navigation Act were removed, the voyage-based test was modified to provide greater consistency of coverage and a mechanism for employers to opt in to coverage was included. Other options, including a seafarer berth or tonnage-based definition, were proposed.

During discussions, industry representatives would not support a new test of coverage that would result in more vessels being covered by the Seacare scheme. On the other hand, maritime unions continued to support an expanded coverage of the Seacare scheme and would not support a new test that would result in fewer vessels being covered.

Both industry representatives and maritime unions expressed support for developing a substantially new model of coverage of the Seacare scheme. However, the Department was not able to develop a model that totally satisfied both industry representatives and maritime unions, with both expressing concerns about the potential impact of new models of coverage on the number of vessels covered by the Seacare scheme.

The proposed new coverage test represents reform of the existing coverage test, as outlined above. Consistent with the views of industry representatives and maritime unions, it clarifies the coverage of the Seacare scheme while maintaining the scope of coverage that applied prior to the Federal Court’s Aucote decision (and applies now as a result of actions taken to limit the coverage of the Seacare scheme following that decision). Following the consultation RIS, the proposed coverage test was refined in response to submissions from employers operating in the marine park tourism industry to ensure that they would not be inadvertently covered.

Work Health and Safety

The EY Review did not consider the OHS(MI) Act in detail. However, since the Stewart-Crompton Review followed the implementation of the model WHS laws, a number of stakeholders commented on Seacare work health and safety arrangements. Industry representatives expressed differing views on the model WHS laws, with one open to adopting the laws for the Seacare scheme but seeking further analysis, while another opposed their adoption for the Seacare scheme. Maritime unions expressed support for adopting the model WHS laws for the Seacare scheme. However, both industry representatives and maritime unions expressed support for retaining separate work health and safety legislation for the Seacare scheme.

The Stewart-Crompton Review recommended largely adopting the model WHS laws for the Seacare scheme, but through separate legislation. It also recommended a transition period for Seacare participants to make preparations to adopt the model WHS laws.

The Department considers there is no compelling reason to retain separate work health and safety legislation for the maritime industry. The WHS Act, which adopts the model WHS laws, has broad based duties that are capable of applying to the maritime industry.

During consultations held by the Department, industry representatives and maritime union expressed general support for expanding the coverage of the WHS Act to include the Seacare scheme. Some concerns were raised about the application of specific provisions, including union right of entry and HSR training, but the Department did not consider it necessary to modify the application of these provisions for the Seacare scheme as this sector of the maritime industry is not so different to warrant special provisions. Given that the WHS Regulations include a number of matters that are not included in the OHS(MI)(NS) Regulations, they will not be applied immediately and further consultations will be undertaken on their application.

Workers’ Compensation

During the EY Review, it was noted that the Seacare workers’ compensation scheme had not kept pace with reforms to improve state and territory workers’ compensation schemes. Issues were raised with the cost of workers’ compensation insurance, high excesses and limited access to redemptions. These issues were also raised during the Stewart-Crompton Review.

During the Stewart-Crompton Review, stakeholders generally supported the need for consistency between the Seafarers Act and the SRC Act. However, industry representatives and insurers did not support alignment of provisions that would increase access to compensation (or benefits) for workers, while unions did not support alignment that would limit access to compensation.

The Stewart-Crompton Review made a number of recommendations to improve consistency between the Seafarers Act and the SRC Act. It also made recommendations to adopt a number of recommendations from the Hanks Review of the SRC Act, which were designed to address industry concerns about the high cost of insurance premiums by improving return to work outcomes.

During workshop consultations held by the Department, industry representatives expressed support for broad changes to Seacare workers’ compensation arrangements that could reduce workers’ compensation insurance costs for employers. Maritime unions, on the other hand, expressed strong opposition to any change to workers’ compensation arrangements that they considered would result in a reduction in entitlements for employees.

Following the release of the consultation RIS, industry representatives supported abolishing the Seacare scheme rather than reforming its workers’ compensation arrangements. Both industry representatives and maritime unions expressed a strong preference for the Seafarers Act to not be significantly reformed prior to any reform of the SRC Act (upon which it was originally based), noting that the Hanks Review recommendations have not yet been adopted for the SRC Act.

The proposed reforms of Seacare workers’ compensation arrangements are consistent with the preference of stakeholders that the Seafarers Act generally align with the SRC Act but not be significantly reformed prior to any reform of the SRC Act. The changes therefore include necessary updates and clarifications to the Seafarers Act to align it with past amendments to the SRC Act. Where the Seafarers Act is to be amended to accommodate changes to the age of eligibility for the age pension and the implementation of the NIIS, it is proposed that corresponding amendments are made to the SRC Act at the same time.

Cost Recovery Levy and Fees

Both the EY Review and Stewart-Crompton Review raised concerns over funding for the administration and regulation of the Seacare scheme. The EY Review recommended increasing the funding and resources of the Seacare Authority. During the Stewart-Crompton Review, stakeholders questions how effective the Seacare Authority could be with its limited funding. An industry representative raised concerns over the ability of AMSA to perform its work health and safety inspectorate functions with its limited funding. Maritime unions submitted proposals for greater funding and resources for the Seacare Authority.

For the workshop consultation to discuss funding of the Seacare scheme, the Department provided a proposal to introduce a cost recovery levy. There was general agreement from industry representatives and maritime unions that the agencies responsible for administering and regulating the Seacare scheme are not adequately funded to perform their functions. However, stakeholders expressed reservations about a cost recovery levy and fees, with industry representatives noting the high costs of workers’ compensation insurance under the Seacare scheme and claiming that such a levy and fees would place an additional financial burden on employers. Since Seacare employers do not currently make any financial contribution to the administration and regulation of the Seacare scheme, the introduction of a cost recovery levy would inherently increase costs for Seacare employers. While not specifically supporting or opposing the introduction of a cost recovery levy, unions suggested that the Government could provide more funding to the Seacare scheme.

To address the concerns of industry representatives, the reform option introduces a mechanism for cost recovery, but t he cost recovery levy will initially be set at $0. Further consultations will be held with Seacare stakeholders prior to any levy rate being set. It would be a matter for Government in the future to determine if a levy rate should set and at what level. The levy could be phased in to minimise the impact on Seacare employers.

Governance

The EY Review examined the governance arrangements of the Seacare scheme. It found that the Seacare Authority’s structure appeared appropriate, but recommended that it be provided with additional powers and funding to be a more effective regulator. During the Stewart-Crompton Review, maritime unions expressed support for the retention of the Seacare Authority. Both industry representatives and maritime unions also expressed support for AMSA retaining its role as the work health and safety inspectorate for the Seacare scheme. The Stewart-Crompton Review recommended retaining the Seacare Authority, but amending the functions of the Authority and AMSA to provide greater clarity about their responsibilities.

On 15 December 2014, the Government announced a decision to transfer the functions of the Seacare Authority to the SRCC. The Department later considered that it would not be appropriate to transfer functions to the SRCC that are performed by Comcare for the Comcare scheme.

For the workshop consultation on governance, the Department provided stakeholders with a proposal to transfer the functions of the Seacare Authority to the SRCC, Comcare and AMSA, with each having clearly defined functions. The SRCC’s current membership includes union representatives and representatives of employers in the Comcare scheme. It was proposed that the SRCC membership would not be expanded to include maritime industry or union representatives given the size of the Seacare scheme and existing presence of union representation.

Industry representatives supported transferring the Seacare Authority’s functions to another body, while maritime unions supported retaining the Seacare Authority. However, during workshop consultations, in submissions following the release of the consultation RIS and during the first legislation preview, both industry representatives and maritime unions raised concerns over the proposal to not include maritime industry representation in the SRCC membership. They sought direct representation for maritime industry and union representatives on the SRCC to ensure industry input into decision-making affecting the Seacare scheme.

To address the concerns of industry representatives and maritime unions and provide industry with input into decision-making affecting the Seacare scheme, the reform option has been amended to include a power for the Chairperson of the SRCC be able to establish an Advisory Group comprising members from maritime industry representatives and unions to advise the SRCC and Comcare on Seacare related matters.



Implementation and review

Subject to the passage of legislation, the amendments to give effect to the recommended option will generally commence from 1 July 2017, with some exceptions.

Amendments to clarify the coverage of the Seacare scheme, align the age at which an injured employee ceases to be eligible for workers’ compensation payments under the Seafarers Act with the age of eligibility for the age pension in the Social Security Act and  facilitate the implementation of the NIIS will commence immediately.

The cost recovery levy will initially be set at $0. It will be a matter for Comcare and AMSA to consult with Seacare employers and unions over cost recovery for the Seacare scheme and seek the Minister’s approval to charge a cost recovery levy. Consistent with the Australian Government’s Charging Framework and Cost Recovery Guidelines, the levy would not be charged until Comcare and AMSA have prepared a Cost Recovery Implementation Statement and the new levy has been put in place under a new regulation.

Only WHS Regulations and approved Codes of Practice that have broad application or are similar to those that apply currently will be applied from 1 July 2017. The Department will engage in further consultations with Seacare stakeholders over the next two years to discuss the phasing in of the WHS Regulations and Codes of Practice, with a view to them commencing from 1 July 2019.

With Seacare work health and safety arrangements moving within the scope of the WHS Act, work health and safety issues affecting the Seacare scheme will be considered as part of any future review of the model WHS laws on which the WHS Act is based.

 



Attachment A

The Department of Employment (the Department) engaged PricewaterhouseCoopers (PwC) to conduct a cost-benefit analysis of the proposed changes to the Seacare scheme. PwC held limited consultations with a small number of Seacare scheme industry representatives and employers and used data held by Comcare to estimate the benefits and regulatory costs of the proposed changes. The costings presented in this Regulation Impact Statement (RIS) have been developed from the cost-benefit analysis prepared by PwC. Further information on the analysis methodology is provided below.

Work Health and Safety Analysis Methodology

The table below provides a summary of the assumptions used by PwC in calculating the work health and safety impacts.

The following sections describe the respective approaches applied in estimating the impacts associated with each key change expected to occur through alignment of the OHS(MI) Act and associated Regulations with the Commonwealth WHS Act and Regulations.

Assumptions used in estimating work health and safety impacts

Assumption

Unit

Value

Source

Average hourly wage - all workers

$ per hour

84

Based on a sample of Enterprise Bargaining Agreements (EBAs) across offshore, bluewater and dredging. A weighted average was calculated using seafarers per sub-sector and assuming that the mix between senior and junior crew was a mix of around 50:50.

Salaries were converted into an hourly rate using the following assumptions:

-        27 weeks worked per year

-        70 hours worked per week (10 hours per day for 7 days a week).

Individuals’ hourly rate of leisure time

$ per hour

29

Standard OBPR estimate

Number of employers under the Seacare scheme

Employers

33

Seacare Annual Report 2014-15

Number of employees covered under the Seacare scheme

Employees

6,863

Seacare Annual Report 2014-15

Seacare claims amount per annum

$millions annually

15

PwC analysis of Seacare data



Assumption

Unit

Value

Source

Ratio of direct to indirect costs of claims

Ratio

1:4

Regulatory Impact Statement - Technical appendix to the RIS (Proposed Occupational Health and Safety Regulations 2007 and Proposed Equipment (Public Safety) Regulations 2007)

On-costs

%

16.0%

Assumption.

Overheads

n/a

n/a

Given the nature and size of the changes, we do not anticipate that additional costs for overheads (e.g. HR, IT, finance etc.) would likely increase. Therefore no amount for overheads has been included in the estimates.

 

Assessment of Cost Impacts

Licensing for certain classes of high risk work

The WHS Act and Regulations require certain work, or classes of work, to be carried out only by or on behalf of a person who is authorised.

It is estimated around 50 per cent of workers in the offshore sector would require a licence, and only half of this (25 per cent) in other sectors.

Desktop research and business comments suggested that licence costs per affected employee could range between $67 and $84.

The additional licensing requirements will impose costs on those currently working in the industry (one-off costs), as well as new entrants to the industry (ongoing costs).

The approach used to estimate the cost for applying for the licences is outlined in Figures 1 and 2 below.

Figure 1 : Approach to estimation of costs associated with changes to authorisation (Employee one-off costs to apply for licence)

Figure 2 : Approach to estimation of costs associated with changes to authorisation (Employee ongoing costs to apply for licence)

 

Specific assumptions and modelling inputs

Assumption

Value

Units

Source and comments

Proportion of the workforce requiring high-risk work licences (offshore)

50

% of workers

Industry consultation

Proportion of the workforce requiring high-risk work licences (other sectors)

25

% of workers

Industry consultation

Time to apply for licence

1

hour

Assumption

 

Training of ‘officers’

The WHS Act imposes a duty on ‘officers’ to exercise due diligence to ensure that the PCBU complies with their WHS duties. It is assumed this would be one day of training.

Figure 3: Approach to estimate costs of additional training of officers

Title: Estimation of costs for additional training - Description: This shows the approach taken to esimate costs associated with additional training of officers

Specific assumptions and modelling inputs

Assumption

Value

Units

Source and comments

Average number of officers per organisation

10

persons

Average figure of information provided during consultation

Course fees

480

$

Proportion of 5 day course fee.

Time taken

7.5

hours

Assumption informed by consultation and online information.

Airfare costs per-individual for attending training

500

$ per return flight

Industry consultation

Meal costs per-individual while attending training

60

$ per day

Industry consultation

Taxi costs for trips to/from airports to attend training

40

$ per trip

Industry consultation

Cost of training other employees

It was also estimated that all other employees would also need to be updated on the changes, however this would be undertaken as either online training, a verbal information presentation or provided as written material. It is estimated on average that this would take around 30 minutes of time for each employee.

Figure 4: Approach to estimate costs of additional training of other employees

Specific assumptions and modelling inputs

Assumption

Value

Units

Source and comments

Time taken

0.5

Hours

Average figure of information provided during consultation

 

Assessment of Benefit Impacts

Increased safety benefits

The estimated safety benefits are more difficult to quantify due to the mixed views of consultation participants, range of circumstances that often lead to safety incidents, and range of different businesses that operate under the Seacare scheme.

Most participants believed that there would be at least some safety benefits as a result of the alignment, due to increased breadth of compliance tools and/or an increase in personal responsibility due to specific duties imposed on them.

There was a view that range of enforcement mechanisms under the WHS Act would result in behavioural change. It was expected that this behavioural change would result in further improved safety outcomes under alignment.

The expected reduction in workplace injuries resulting from alignment with model WHS laws would be at least 1.4 per cent. [8]

This estimate is used in this analysis as the lower-bound estimate of reduced workplace safety incidents from Seacare scheme alignment. The upper bound used is 5.0 per cent, based on the lower estimate provided by the stakeholder comments above.

Figure 5: Approach used to estimate benefit impacts

Title: Approach used to estimate benefit impacts - Description: This shows the approach used to estimate the benefit impacts of the WHS laws

Were this impact to occur it would result in significant ongoing benefits in the form of improved safety outcomes for Seacare scheme participants.

Workers’ Compensation Analysis Methodology

Based on the cost impact assessments above we have considered the overall cost impact on the Seafarers scheme. The results are presented in terms of the potential cost impact for the 2014-15 financial accident year.

This uses a number of assumptions regarding claims experience, as follows (note these are unchanged from the 2015 report):

·          Exposure: we have assumed the number of FTEs covered by the Seacare scheme is broadly equal to the average number covered in the previous 5 years (2010 - 2014).

·          Frequency of claims: we have assumed that the number of claims incurred as a percentage of the number of FTEs covered by the scheme is slightly lower than the average of the previous five years (2010 - 2014). This gives some allowance for the reduction in claim frequency seen in recent years.

·          Average cost per claim: based on an analysis of the average cost of compensation payments historically for both open and closed claims, we have assumed that the ultimate cost of compensation paid to a single claimant for an accident occurring in the 2015 financial year will be $60,000.

Based on these assumptions, our assessment of the claims cost impact for 2014-15 is an increase of $0.1 million. This is a distributional impact, rather than an overall impact to society.

 



 

Figure 6: Assessment of the claims cost impact

Description

Seafarers Act

Amended Seafarers Act

Movement

% change

Exposure (FTEs)

5000

 

 

 

Claim Frequency

0.05

 

 

 

Number of claims

250

249

-1

-0.4%

Average cost per claim

60,000

60,750

750

1.3%

Total compensation ($m)

15.0

15.1

0.1

0.8%

Source: PwC analysis.

This overall impact arises from:

·          A small reduction in frequency which is driven by the tightening of the eligibility criteria for which diseases are compensable. The quantum of this change is small as the nature of injuries covered by the Seacare scheme are predominantly physical injuries sustained on duty and these are unlikely to be removed by the proposed change.

·          An increase in average claim size driven by the pension age change. Note that we have continued to assume the change in funeral benefits is not material.

This covers the change in cost of scheme claims only. It does not cover related expenditures such as below deductible claims costs, general claims management expenses (other than those recorded against individual claims) or other items that may be included in the employer’s premiums.

Assumptions and Limitations

Coverage

The costs and benefits calculated assume that the existing coverage of the Seacare scheme will continue into the future.

Governance arrangements

The Seacare scheme workers’ compensation will remain a separate, privately underwritten Seacare scheme.

The SRCC will replace the Seacare Authority from 2016-17 as per the Government’s December 2014 announcement. There will be no significant changes to AMSA’s role.

There are no changes to the Fund and levy.

Timing

The majority of the reforms are expected to commence 1 July 2017, with costs and benefits measured in 2015 prices.

Cost impacts

Costs and benefits are being assessed on the basis that the Government will near fully align the Seacare work health and safety legislation with the Commonwealth WHS Act.

Consultations

As the consultations were generally drawn from industries most likely to be impacted by the identified changes, certain treatments have been applied to ensure that the cost data obtained does not overstate the general impact.

Data

There is no obligation on an injured seafarer to lodge a Seacare Claim for Workers’ Compensation form, so not every injury results in a claim. Also, it is possible employers do not advise all employee claims to the Seacare Authority or the employer’s insurer. This is likely due to the high deductible amount that many businesses have arranged to ensure that insurance premiums are kept at an affordable level.



Statement of Compatibility with Human Rights

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

Seafarers and Other Legislation Amendment Bill 2016

The Seafarers and Other Legislation Amendment Bill 2016 (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 Seacare scheme provides workers’ compensation and work health and safety (WHS) protections to a very small defined section of the Australian maritime industry. The scheme is established by the Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act) and the Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act), as well as two levy Acts. The scheme generally only applies to Australian flagged vessels and foreign flagged vessels with an Australian crew and operator that are engaged in interstate, international or territorial trade or commerce. As of July 2015, the scheme was known to apply to 336 vessels and 6,863 employees (a small portion of approximately 80,000 domestic seafarers in Australia).

The Seacare scheme commenced in 1993 and has not been substantively updated since this time, despite changes in the profile of the Australian maritime industry, including to its employment arrangements, workplace and working conditions.

The amendments made by the Bill will update the scheme by restoring the historic link with broader Commonwealth workers’ compensation and work health and safety laws, and clarifying coverage to reduce disputation and delay for injured workers seeking compensation. Improvements are also made to the governance of the scheme, integrating it with existing arrangements, and freeing up resources to improve oversight of workers’ compensation arrangements and WHS compliance.

The Bill will achieve this by:

·          introducing a new test to clarify coverage of the Seafarers Act;

·          repealing the OHS(MI) Act and extending the coverage of the Work Health and Safety Act 2011 (WHS Act) to vessels covered by the Seafarers Act;

·          updating the workers’ compensation provisions in the Seafarers Act to restore the alignment with broader Commonwealth workers’ compensation laws; and

·          giving effect to recent changes to the Maritime Labour Conventionand making minor amendments to broader Commonwealth workers compensation and work health and safety laws.

 

The Seafarers Safety and Compensation Levies Bill 2016 and the Seafarers Safety and Compensation Levies Collection Bill 2016 support this reform package by establishing new cost-recovery arrangements to fund the regulatory oversight of the Seacare scheme.  

Human rights implications

The Bill engages the following rights:

·                     the right to equality and non-discrimination in article 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR);

·                     the right to social security in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

·                     the rights of persons with disabilities in article 26 of the Convention on the Rights of Person with Disabilities (CRPD);

·                     the right to safe and health working conditions in article 7 of ICESCR;

·                     the right to privacy in article 17 of the ICCPR; and

·                     the right to be presumed innocent until proved guilty in article 14 of the ICCPR.

Changes to work health and safety regulation

The Bill will repeal the OHS(MI) Act and extend the coverage of the WHS Act to vessels covered by the Seafarers Act. This promotes the right to safe and healthy working conditions by extending a modernised system of WHS laws that align with the majority of other Australian jurisdictions to vessels within the Seacare scheme.

Right to safe and healthy working conditions

Article 7 of ICESCR provides that everyone has the right to the ‘enjoyment of just and favourable conditions of work, which ensure, in particular … [s]afe and healthy working conditions’.

The OHS(MI) Act is based on the (repealed) Occupational Health and Safety Act 1991 (OHS Act) and was broadly similar to OHS laws across all state and territories at that time. Since then the OHS Act has been replaced by the WHS Act, which is the Commonwealth’s implementation of the model WHS laws developed by Safe Work Australia and adopted in the majority of Australian jurisdictions. [9] However, the OHS(MI) Act has not been substantially amended since its enactment and as a consequence has become considerably out of date.  The out of date OHS(MI) Act contributes to the poor safety performance of the scheme. The Seacare Review noted the following disparities between the OHS(MI) Act and the WHS Act:

·          the OHS(MI) Act’s definitions and duties are more narrowly defined;

·          the WHS Act makes clear that duties cannot be transferred, and provides clear rules for understanding the common situations of overlapping duties and multiple duty holders;

·          the WHS Act imposes a duty on officers (such as company directors) to exercise due diligence to ensure their organisation complies with the Act;

·          the OHS(MI) Act has narrower arrangements for workplace consultation and representation;

·          the OHS(MI) Act lacks modern graduated measures for securing compliance;

·          the OHS(MI) Act’s penalties are significantly lower and out of date, and its sentencing options are more limited; and

·          the WHS Act has more extensive regulations and codes of practice to provide more precise regulation and guidance for high risk work and hazards. [10]

Removing these disparities by repealing the OHS(MI) Act and extending the application of the WHS Act in its place will promote the right to safe and healthy workplaces.

The Seacare Review recommended that the model WHS laws should be specifically adapted for the maritime industry. The government, after extensive consideration and consultation with key stakeholders, has decided that industry specific WHS laws were not required, and that the right to safe and healthy working conditions is best promoted through the adaptable, uniform laws already in force in the majority of Australian jurisdictions. The duties and requirements in the WHS Act and Regulations are broad based and are capable of applying to a range of sectors, industries and businesses. Retaining industry-specific WHS legislation covering the sector of the maritime industry covered by the scheme is no longer necessary. The sector is not so significantly different from other industries which fall under generally applying Commonwealth, state or territory WHS laws as to justify the continuation of separate WHS arrangements. Maritime industry employers not currently covered by the OHS(MI) Act operate under general WHS laws that apply to all businesses within the state or territory in which they operate. The right to safe and healthy workplaces will be most effectively promoted in the maritime industry by applying the same uniform WHS laws that, in most jurisdictions, apply to every other industry.

The regulations and codes of practice which exist under the WHS Act provide detailed regulation and guidance for particular types of high risk work and hazards. Once the OHS(MI) Act is repealed and the WHS Act extends to the maritime industry, the regulations and codes of practice will likewise apply to the Seacare scheme from commencement where appropriate. Where the obligations require further consideration as to whether they are appropriate for the industry they will be disapplied and there will be a consultation period with the expectation that further regulations will be in place for two years from commencement.  If necessary, the WHS Regulations will be supplemented by industry specific regulation or guidance. 

By aligning with contemporary WHS laws the effectiveness of WHS regulation in this sector of the maritime industry will be enhanced. 

As such, the Bill is compatible with and promotes the right to safe and healthy working conditions.

Right to be presumed innocent until proven guilty

The existing provisions of the WHS Act, extended to the maritime industry by the Bill, also engage the right to be presumed innocent until proven guilty by placing an evidential onus on a person to adduce evidence that the reason for engaging in an action was not a ‘prohibited reason’. While these provisions are already in effect and are not amended by the Bill, for completeness an analysis of their impact on the right to be presumed innocent until proven guilty is included below.

Article 14.2 of the ICCPR provides that ‘[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law’. General Comment No. 32 of the Human Rights Committee states that:

The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. [11]

Section 104 in Part 6 of the WHS Act establishes a prohibition on engaging in ‘discriminatory conduct’ for a ‘prohibited reason’, which is enforceable by a criminal offence with a maximum penalty of $100,000 for individuals and $500,000 for corporations. Broadly, this part creates an offence if a person dismisses a worker, or ceases a commercial arrangement with another person, because of that worker or person’s actions to ensure compliance with the WHS Act.

‘Discriminatory conduct’, defined in section 105, encompasses a person dismissing, demoting or refusing to engage a worker or terminating or refusing to enter into a commercial arrangement with a person. ‘Prohibited reason’ is defined in section 106. Generally, a person has engaged in conduct for a prohibited reason if they engaged in conduct against a person because the person exercised a power or right under the WHS Act or raised a WHS concern.

A person is only guilty of an offence under section 104 if the prohibited reason was the dominant reason for the discriminatory conduct. The prosecution must prove that:

·          the discriminatory conduct was engaged in; and

·          that a circumstance in which a prohibited reason could arise existed.

However, if the prosecution can establish these matters beyond a reasonable doubt, and adduces evidence that the discriminatory conduct was engaged in for a prohibited reason, it is presumed that the dominant reason for the discriminatory conduct was the prohibited reason.

The accused can rebut this presumption by establishing, on the balance of probabilities, that the reason was not the dominant reason. While there is no legal requirement for the accused to prove that there was a another reason for the discriminatory conduct, it would be common for the accused to present evidence that there was another reason for the discriminatory conduct, such as underperformance or misconduct by the worker.

Because the Bill will extend this provision, which places a partial burden of proof on the accused, to the Seacare scheme, it engages and limits the right to be presumed innocent until proven guilty. However, this limitation is not inconsistent with the right because it is necessary to achieve a legitimate objective and because it is a reasonable and proportionate approach to achieving that objective.

The legitimate objective of Part 6 is to provide strong protections for individuals who act to improve safety at their workplace or otherwise act to raise safety issues or facilitate compliance. Workplace safety relies on every person, not just inspectors, playing a proactive in raising health and safety issues, and that this proactive role must be encouraged and supported. Workers will be most likely to be proactive about safety if they have strong protections from being disadvantaged for raising health and safety concern, acting in health and safety representative roles or assisting their representatives or the regulator. The need to safeguard the safety of all individuals at the workplace—promoting the right to safe and healthy workplaces—is a significant and legitimate objective which can justify reasonable and proportionate limitations on other rights.

As noted in the National Review into Model Occupational Health and Safety Laws’ Second Report, there may be many reasons why a person who subjects another person to a disadvantage took that action and it is excessively difficult, if not impossible, for a prosecutor to provide the reason for the conduct. As a result, discrimination laws in Australia typically place the burden on the person engaging in the conduct of proving that it was not for an alleged reason. [12] Without this reversed burden of proof, these laws would be ineffective at discouraging discriminatory behaviour. As such, the reversed onus of proof is necessary to achieve the legitimate objective of these laws.

The limitation is reasonable and proportionate, because it is only a partial reversal of the onus of proof. The prosecution must still establish, beyond a reasonable doubt, that there was discriminatory conduct, and that the circumstances for a prohibited reason to arise existed at the time of the discriminatory conduct. The prosecution must also adduce evidence to link the discriminatory conduct to the prohibited reason. Further, if the prosecution does establish these elements, the burden of proof for the accused to establish that the prohibited reason was not the dominant reason is on the balance of probabilities, not beyond reasonable doubt. This is a proportionate and reasonable reversal of the burden of proof which is limited to a single element of the offence.

In considering whether this limitation is reasonable and proportionate, it should also be noted that while section 104 does create a criminal offence with a significant maximum financial penalty, it cannot result in and an individual being subject to more serious criminal sanctions, such as imprisonment.

Right to privacy

The existing provisions of the WHS Act, extended to the maritime industry by this Bill, also engage the right to privacy by conferring right of entry powers on union officials and creating inspector powers to require an individual to provide their name and address. While these provisions are already in effect and are not amended by the Bill, for completeness an analysis of their impact on the right to be presumed innocent until proven guilty is included below.

Article 17 of the ICCPR provides that ‘no one shall be subjected to arbitrary or unlawful interference with [their] privacy, family, home or correspondence’. General Comment No. 16 by the Human Rights Committee elaborates on Article 17, stating that the ‘gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law’. [13]

Part 7 of the WHS Act confers rights on a person who holds an office in, or is an employee of, a union and who holds an entry permit (permit holders) to enter workplaces and exercise certain powers while at those workplaces. The Part also sets out requirements of permit holders who are exercising or proposing to exercise a right of entry and describes conduct that must not be engaged in by permit holders or other persons at a workplace in relation to permit holders.

The Bill will extend the application of the WHS Act to vessels within the Seacare scheme. By broadening the application of the right of entry provisions, the Bill engages the right to privacy. However, the Bill does not limit the right to privacy, because the right of entry provisions will not interfere with privacy in a way which would be either arbitrary or unlawful, and the use or disclosure of any information gathered using the right of entry provisions is regulated by law.

Entry rights are limited to permit holders, and any misuse of entry rights can lead to both civil penalties and to the individual’s permit being suspended or revoked. Further, entry rights can only be exercised for specified purposes which are focused on the promotion of safe and healthy workplaces. Entry rights are also limited so that permit holders cannot enter any part of a workplace that is used solely for residential purposes.

While exercising an entry right, permit holders can inspect and make copies of employee records. To ensure this power cannot result an arbitrary interference with privacy, this power can only be used for the purposes of an inquiry into a suspected contravention of the WHS Act. Further, any use or disclosure of information obtained in this way is regulated by the Privacy Act 1988 , which sets out a comprehensive scheme for the protection of personal information, with significant financial penalties for non-compliance.

Section 185 of the WHS Act allows an inspector to require a person to tell the inspector his or her name and residential address if the inspector:

·          finds the person committing an offence against the Act (paragraph 185)(1)(a));

·          reasonably suspects the person has committed an offence against the Act, based on information given to the inspector, or the circumstances in which the person is found; or

·          reasonably believes the person may be able to assist in the investigation of an offence against the Act.

An inspector can request proof of a person’s name or address, if they reasonably believe they have given a false name or address.

By extending this provision to the Seacare scheme, the Bill engages the right to privacy. However, the Bill does not limit the right to privacy, because the inspector powers will not interfere with privacy in a way which would be either arbitrary or unlawful, and the use or disclosure of any information gathered using the inspector powers is regulated by law.

Inspectors’ power to request a person provide their name and address is strictly limited to the situations listed above. Further, the use and disclosure of information gathered by inspectors will be regulated by the Privacy Act 1988 .

Changes to workers’ compensation

The Bill implements the Government’s decision to make minor amendments to update the current workers’ compensation arrangements under the Seafarers Act. The reform proposals adopt the recommendations in the Seacare Review, commissioned by the former Government in 2012, with a view to aligning the Seacare scheme with the Comcare scheme except where those recommendations are obsolete or inappropriate.

The changes include such amendments as:

·          extending the definition of ‘medical treatment’ to include further types of compensable treatment;

·          reducing the threshold for compensation for a permanent impairment that is a binaural hearing loss from 10% to 5%;

·          changing the level of contribution by employment to an injury that is a disease from a contribution in a ‘material degree’ to ‘significant degree’; and

·          changing coverage of psychological injuries to exclude an injury suffered as a result of ‘reasonable administrative action taken in a reasonable manner’ instead of an injury suffered as a result of ‘reasonable disciplinary action’.

The package will also include some mirror amendments to the Seafarers Act and the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to align them with benchmarks for the National Injury Insurance Scheme and link the pension age to the Social Security Act 1991 .

Right to Equality and Non-Discrimination  

Articles 2 and 26 of the ICCPR ensure that no one is denied their rights because of a prohibited ground (for example, race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status). This recognises that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

Right to social security

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’. [14]

Many of the changes made by the Bill engage the Right to Equality and Non-Discrimination and the Right to Social Security. Some changes limit these rights, however, some promote them. These changes and their interaction with these rights are discussed in detail below.

Rights of Person with Disabilities

Article 26(1) of the CPRD requires States Parties to ‘take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life’.

Change from ‘material degree’ to ‘significant degree’

Under the current Seafarers Act, a disease, or an aggravation of a disease, is compensable if it was contributed to in a ‘material degree’ by the employee’s employment. The Bill amends this provision, providing that a disease, or an aggravation of a disease, is compensable if it was contributed to, ‘to a significant degree’, by the employee’s employment. ‘Significant degree’ is defined to mean ‘a degree that is substantially more than material’.

 

This change will result in some diseases which are currently compensable being non-compensable. As such, it limits the right to social security.

 

The use of the phrase ‘material degree’ in the current Seafarers Act is based on the SRC Act, which used this term when enacted in 1988. The term ‘material degree’ was intended to require an employee to show there was a ‘close connection’ between the disease and the employee’s employment. [15] Since this enactment, the term material degree has been interpreted in court and tribunal decisions so to erode the extent to which employment must have contributed to the contraction or aggravation of the disease. [16] To address this concern, the SRC Act was amended in 2007 to require a significant contribution, in order to provide an effective test of work-relatedness.

 

The legitimate objective of applying a ‘significant contribution’ test is to re-establish a clear requirement for a disease to be closely related to an employee’s employment in order for workers’ compensation to be payable. The Committee has previously agreed that ensuring employers are not liable for diseases which have no significant basis in employment may be a legitimate objective for the purposes of human rights law. [17]

 

The change from ‘material contribution’ to ‘significant contribution’ is rationally connected to this legitimate objective because the contribution test is the primary focus for employers, tribunals and courts in determining whether a disease is compensable. The change is reasonable and proportionate to this objective because it will align the Seacare scheme with the Comcare scheme and most state and territory schemes. Further, for employees who contract a disease which has a high incidence in their type of employment, clause 10 will provide a presumption that there was a significant contribution by the employment. This will ensure that employees who develop diseases with known links to their type of employment are not affected by this change.

 

Change from ‘disciplinary action’ to ‘reasonable administrative action’

 

The Seafarers Act currently aims to prevent compensation claims from being used to obstruct legitimate and reasonable disciplinary action by excluding from the definition of ‘injury’ any condition (usually a psychological condition) that has arisen as a result of such action. To this end, section 3 currently provides that the definition of ‘injury’ does not include a disease, injury or aggravation suffered as a result of reasonable disciplinary action taken against an employee or as a result of a failure by an employee to obtain a promotion, transfer or benefit in connection with their employment.

 

The Bill introduces a new clause 5A with a definition of an injury and a new clause 5B with a definition of disease. Clause 5A provides that an injury, disease or aggravation suffered as a result of reasonable administrative action is not compensable. Subclause 5B(2) includes a non-exhaustive list of actions which are ‘administrative action’.

 

Because ‘administrative action’ is a broader concept than ‘disciplinary action’ this change will mean that some injuries which are currently compensable will no longer be compensable. This change—which would align the Seacare scheme with the Comcare scheme and several state schemes—is primarily concerned with psychological injuries. Psychological injuries make up only 2.47% of claims in under the Seacare scheme. [18] As such, there are unlikely to be many, if any, claims affected by these changes. None-the-less, because the changes reduce the availability of compensation, they limit the right to social security and health.

 

The legitimate objective of the amendments is to ensure the Act applies as intended, and to ensure that employers can take reasonable action in managing their workplaces.

The amendments are reasonable, necessary and proportionate for a number of reasons.

 

First, the amendments are necessary to ensure that there is clarity around the scope of the exclusion following decisions such as Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 (noting that this decision related to the SRC Act).

 

Second, the amendments are reasonable and proportionate because employees will remain eligible to be compensated for their condition if it arose because of an unreasonable administrative action. The amendment will allow employers to engage in the reasonable management of their business, including takeovers, restructures and other operational matters, without concern that these actions may consequently form the basis of workers’ compensation claims.

 

Employers need to be able to give fair and constructive feedback on an employee’s performance, make necessary decisions to respond to poor performance or changing operational requirements and, if necessary, take disciplinary action and be able to effectively direct and control the way work is carried out.

 

To the extent that the amendments may disproportionately affect employees suffering from psychological injuries, the right to non-discrimination is indirectly engaged. However, the indirect differential treatment of employees with psychological injuries is permissible as the amendments are justified by a legitimate aim and are an appropriate, objective and necessary approach to achieving that aim. [19] First, as explained above, the new provisions will ensure that it applies as intended and to provide clarity around the scope of the exclusion. Secondly, the new provisions are proportionate as there is no other means of achieving the objective that imposes less interference with the right to non-discrimination. Finally, the provisions are objective as they apply equally to all employees and all types of injuries suffered as a result of reasonable management action.

 

Journey claims provisions

The Bill amends the Seafarers Act to clarify that travel for a private or domestic reason will not be presumed to be arising out of, or in the course of, a seafarer’s employment except in limited circumstances. New subsections 9(3A), 9(3B) and 9(3C) apply to an employee who suffers an injury while travelling on a journey from the employee’s place of work where the employee has delayed commencing that travel, has taken an indirect travel route or has interrupted the travel for a private or domestic reason . That injury will generally not treated as having arisen in the course of employment unless the delay or interruption is no more than 72 hours and the employer has given written agreement to the delay or interruption.  

Consistent with the request of the industry during consultations the provisions are intended to clarify that an employee who takes a holiday before returning home at the end of a voyage is not considered to be still operating in the course of their employment, unless the employer has agreed to a short break of up to 72 hours.

 

While on the face of this amendment it appears to limit the right to social security, it does not limit that right in practice as employers are currently free to refuse any seafarers’ leave on a return journey where there is a break in service. The provision clarifies when a seafarer will be covered by the Seacare scheme, facilitating flexibility for seafarers to have a short break on return with agreement of their employer, although potentially reducing the number of situations where a seafarer will be entitled to claim workers’ compensation. While limiting the right to social security, this amendment is reasonable, necessary and proportionate. The limitation recognises that the workers’ compensation is intended to provide compensation for injuries that are work-related and not intended to cover situations where the safety of the employee is largely beyond the employer’s control or in situations that are appropriately covered by other types of compensation e.g. travel insurance. The provision for the employee to delay or interrupt their journey for up to 72 hours with the employer’s agreement is a reasonable accommodation of an employee’s right to social security. The limitation also provides greater certainty to seafarers and employers as to when they are covered by the scheme and is consistent with the expectations of industry.

 

Aligning retirement age

The Seafarers Act currently provides for compensation payments to cease when an injured employee reaches 65-the standard retirement age. The rationale behind ceasing compensation payments is that once the employee has reached pension age they can move from workers’ compensation payments to age pension payments.

However, the pension age will rise beyond 65 incrementally to age 67, creating an increasing gap between the cessation of payments under the Seafarers Act and minimum qualifying age for the age pension. The Bill amends section 38 to include new subsections 38(1) and (2) to remove the reference to 65 and insert ‘pension age’. This amendment removes the gap and ensures that, in the event that the pension age rises further in the future, there will not be a gap.

This change promotes the right to social security by allowing an injured employee to receive weekly compensation until their pension age. Additionally, employees who are injured at any time after two years prior to their pension age continue to be entitled to receive weekly incapacity payments for a period of 52 weeks.

Mirror amendments are also made to equivalent provisions in the SRC Act by the Bill.

Changes to household and attendant care services for catastrophically injured workers

The Bill makes a change to the amount of compensation in respect of attendant care and household services a catastrophically injured employee is entitled to, to facilitate it being aligned it with the minimum benchmarks in the proposed National Injury Insurance Scheme (NIIS).

The NIIS is being developed as a federated model of separate, state-based, no-fault schemes that provide minimum benchmark lifetime care and support for people who have sustained a catastrophic injury in each of the four streams: motor vehicle accidents, workplace accidents, medical accidents and general/other accidents. The Commonwealth entered into Heads of Agreement with each of the states and territories (except Western Australia) regarding funding for the NIIS. As part of these Heads of Agreement, the states and territories committed to develop, agree and implement nationally-consistent minimum benchmarks for workplace accidents by 1 July 2016.

While minimum benchmarks have been developed for state and territory motor vehicle accident compensation schemes, there has not yet been agreement on the minimum benchmarks for workplace accidents, although a Regulation Impact Statement has been released. However, one of the benchmarks for motor vehicle accident compensation schemes is unlimited access to household and attendant care services where a person suffers a ‘catastrophic injury’ which is also defined in the benchmarks.

 

The current Act requires amendments to facilitate it being able to meet the minimum benchmark in respect of employees who suffer a catastrophic injury as a result of a workplace accident in the attendant care and household care entitlements.

 

The current Act provides that injured employees are entitled to compensation for household services and attendant care services to a maximum of $449 per week. This compensation is not payable within the first 28 days of an injury. The change inserts a definition of ‘catastrophic injury’ into the Seafarers Act and inserts a new provision removing the cap on the compensation payable for household service and attendant care services for catastrophically injured employees and also removes the 28 day preclusion period for catastrophically injured employees.  These changes will also allow for rules to set compensation or other benefits that the injured worker is entitled to receive, according to the NIIS benchmarks.

This change promotes the right to social security by providing greater workers’ compensation entitlements to catastrophically injured seafarers. These changes recognise the greater care requirements of workers with catastrophic injuries and ensure that the level of benefits paid does not limit an employee from receiving the full level of attendant care services they require. This change also positively engages the right of persons with disabilities. Seafarers who are catastrophically injured may be considered to have a disability for the purposes of international law and this change provides better support for those seafarers.

 

Changes to coverage

The coverage rules for the Seacare scheme determine whether a seafarer will have workers compensation and WHS protections under the Seacare scheme or state or territory laws. As such, changes to coverage engage both the right to social security and the right to safe and healthy working conditions.

Under the new coverage provisions, the scheme will apply to vessels which are registered in Australia, or which are registered outside Australia but which have a majority Australian crew. The scheme will not apply to any vessel which is wholly or substantially engaged in voyages and other operations which are within a single state or the Northern Territory. Vessels in the Northern Territory will be treated in the same way as all other vessels. A number of specific exclusions have also been included to ensure the scheme does not apply to vessels which have traditionally operated outside the scheme, such as local tourism vessels and fishing vessels.

The new coverage provisions have been designed to deliver greater certainty and voyage-to-voyage consistency about whether a vessel is covered by the Seacare scheme, while maintaining its existing scope of application. This existing scope reflects the accepted operation of the scheme within the industry, and an appropriate divide between state and federal regulation, in what is generally a state matter.

Right to social security

The right to social security has been detailed above.

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 and territory) 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.

Workers’ compensation legislation varies extensively across Australia, with different benefit levels and structures, eligibility rules, rehabilitation structures, restrictions on access to common law damages and dispute resolution systems. Whether an injured employee will be better off under a particular system depends on a wide variety of factors, such as income, impairment level, preferences for weekly or lump sum payments and return to work prospects. Further, in some cases a scheme which provides a lower level of monetary benefits will have more effective return to work performance, meaning that the scheme, while appearing less generous, delivers better overall outcomes for injured employees. As such, any changes to scheme coverage rules—expansion, contraction or otherwise—will limit the right to social security for some injured employees and promote it for others.

The purpose of the new coverage rules is to limit the application of the Seacare scheme to those vessels which have traditionally been regulated by the Seacare scheme. As such, the scheme will not apply to vessels which are wholly or predominately used for operations and voyages which are within a particular state or territory, as these vessels are more appropriately regulated by state or territory legislation. Similarly, the scheme will not apply to classes of vessels which are already covered by state or territory legislation, such as local tourism vessel, recreation vessels and fishing vessels. Establishing new coverage rules which maintain the historical application of the scheme is a legitimate objective for legislation relating to what is predominately state and territory matter. For clarity, all fishing vessels, including vessels that do sometimes travel overseas, will be covered by state and territory workers compensation and WHS laws.

Achieving this legitimate objective necessarily impacts on the right to social security, because it can only be achieved through state and territory legislation applying to employees on some vessels and the Seacare scheme applying to employees on other vessel. As noted, this will at times promote and at other times limit the right to social security. Where there are limitations, these are necessary to achieve this legitimate objective. Further, the limitations are reasonable, as all employees will continue to be covered by a workers’ compensation scheme which will provide compensation for lost wages from incapacity, impairment and medical costs and support their return to work. Variations in these entitlements reflect the different policy priorities of the state and territory governments and decisions within their own parliamentary systems, and should not be considered an unreasonable limitation on human rights. The limitations are also proportionate, as there no approach to coverage which would have a more limited effect on human rights which would also achieve the legitimate objective of maintaining the existing scope of the Seacare scheme.

Changes to restore consistency with existing equivalent provisions in the SRC Act, where appropriate, include reducing the percentage hearing loss required to be established before compensation is payable from 10% to 5%. This is consistent with human rights.

Right to safe and healthy working conditions

The right to safe and healthy working conditions is contained in article 7 of ICESCR. The right is discussed in full below in relation to the changes to WHS regulation.

WHS laws in Australia have been harmonised across the majority of jurisdictions, so variations in which law applies have little to no effect on the quality of protection for workers. As such, although the coverage of the Seacare scheme affects the source of WHS protections for seafarers (that is, state or Commonwealth legislation), it does not affect the substance of these protections. The provisions relating to coverage are compatible with the right to safe and healthy working conditions because no matter how coverage is set, seafarers will have a strong system of WHS protections while at work.

Further, clarifying and improving the coverage rules will assist with the effective regulation of WHS for vessels within scheme, promoting the right to safe and healthy working conditions.

As such, the new coverage provisions are consistent with human rights.

Changes to Governance

The Bill will transfer the functions of the Seacare Authority, which administers the scheme with the support of Comcare, to the SRCC and Comcare. The governance of the Seacare scheme will be integrated with the governance of the Comcare scheme, which will improve its efficiency and effectiveness.

These amendments merely transfer functions between government entities and do not engage human rights.

Changes to insurance obligations

The Bill will make a number of changes to tighten employers’ obligations in relation to carrying, reporting and displaying their insurance arrangements. These changes will ensure Australia is complying with amendments to the Maritime Labour Convention which will take effect on 18 January 2017.

·          These changes promote the right to social security under article 9 ICESCR as the measures ensure that a system of financial security through social security or insurance is in place to ensure compensation to seafarers in the case of death or long term disability due to an occupational injury, illness or hazard.  It also ensures that adequate insurance is maintained and ongoing unless the relevant Australian authority is notified at least 30 days before the period of the financial security ends. These changes also require seafarers to be made aware if the insurance arrangements are terminated.

·          The right to safe and health working conditions in article 7 of ICESCR are also additionally enhanced by these changes to the MLC.  

Amendments to the Work Health and Safety Act 2011 of general application

There are a small number of amendments to the WHS Act which are of general application i.e. they are not specific to the Seacare scheme. These amendments are to:

·          remove the requirement on businesses to provide Comcare with an up to date list of Health and Safety Representatives (HSRs);

·          replace the reference to giving ‘directions’ in a Provisional Improvement Notice (PIN), with giving ‘recommendations’; and

·          clarify that Judges and Heads of Mission are not ‘officers’ for the purposes of the WHS Act.

 

Right to safe and healthy working conditions

Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR) recognises a right to enjoy just and favourable working conditions—which includes a right to safe and healthy working conditions.

In relation to this right, the Committee on Economic, Social and Cultural Rights has stated that ‘people must be afforded minimum conditions of occupational health and safety, and States parties are responsible for adopting policies and laws to that end’. [20]

Australia principally complies with this obligation through a system of Commonwealth, state and territory work health and safety laws, which have been harmonised across the majority of jurisdictions through the adoption of model laws (the model WHS laws). The Commonwealth has given effect to the model laws in enacting the WHS Act.

 

Implementation of amendments to model WHS laws

 

The model WHS laws were developed under the Inter-governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA) to form a system of harmonised work health and safety laws . The IGA requires each jurisdiction to enact or otherwise give effect to their own laws that mirror the model WHS laws as far as possible.

 

In May 2014, the Council of Australian Governments (COAG) asked Ministers with responsibility for WHS to investigate ways in which the model WHS laws could be improved, with a particular focus on reducing regulatory burden and making it easier for business and workers to comply. The report titled ‘ Improving the model Work Health and Safety Laws’ (the 2014 Report) sets out the Ministers’ recommendations for improvements to the model WHS laws based on the findings from their examination of the model WHS laws.

 

The recommendations contained in the 2014 Report were considered by WHS Ministers and a number of changes to the model WHS Act were agreed to in-principle by the majority of Ministers.

 

The Bill amends provisions relating to PINs and removes a record keeping requirement as agreed by WHS Ministers on 11 April 2014.

 

Reference to ‘recommendations’ rather than ‘directions’ in PINs

A HSR may issue a PIN under section 90 of the WHS Act if he or she reasonably believes that a person is contravening that Act. A PIN is a written notice requiring the contravention to be remedied or a likely contravention to be prevented. 

Subsection 93(1) provides that a PIN may include directions which outline the measures to be taken to remedy or prevent the contravention. Although directions may specify a particular method to remedy or prevent a contravention, there may be other methods available which would achieve the same outcome. While the language in section 93, such as ‘directions’ and ‘the measures to be taken’, suggests that compliance with a direction is compulsory, compliance with a specific direction is optional and other measures can be utilised instead. The 2014 Report noted that it is not correct for HSRs to require one method of compliance when others are available.

The 2014 Report also highlighted the concerns that were raised over the enforceability of directions given under a PIN. Section 99 makes it an offence for a person issued with a PIN to not comply with it. The COAG Report raises the issue of whether there is a difference between failing to comply with a PIN and failing to comply with a direction made under a PIN. Under the current provisions, non-compliance with a direction in a PIN could be characterised as an offence under section 99.

The Bill repeals and replaces section 93 to clarify that a PIN may include recommendations (rather than directions) about measures that may be taken by a person to prevent or remedy a contravention.

The amendment may be viewed as a diminution of health and safety standards because it removes terms such ‘directions’ and ‘the measures to be taken’. However, the current wording does not reflect the policy intent of the provision as the method by which a person remedies a contravention is intended to be at their discretion. A PCBU will still be required to remedy the contravention that is identified in the PIN.

This amendment will therefore not impact on the right of persons to safe and healthy working conditions.

Requirement to provide an up-to-date list of HSRs to the regulator

The removal of the requirement on a person conducting a business or undertaking (PCBU) to provide a copy of an up-to-date list of HSRs to Comcare does not alter the primary aspect of section 74(1) which requires the PCBU to prepare an up-to-date list of HSRs and their deputies and display it in a prominent place in the workplace. It merely removes the additional burden on employers to then also provide the list to the Regulator.

Inspectors may view lists when attending a workplace and may request that a list be provided to them (section 155 of the WHS Act). This amendment will therefore not impact on the right of persons to safe and healthy working conditions.

Duty of officers

The Bill would amend section 247 of the WHS Act to provide that a justice of the High Court, a judge or justice of a court created by the Parliament (judges), and a Head of Mission within the meaning of the Public Service Act 1999 (Head of Mission), are not an ‘officer’ when acting in that capacity.

 

Section 247 of the WHS Act establishes who an ‘officer’ of the Commonwealth is for purposes of section 27. Section 27 requires ‘officers’ of an organisation to exercise due diligence to ensure the business or undertaking complies with the law, by requiring appropriate structures, policies and resources to be put in place. The duty is intended to apply to persons who make or participate in making decisions that are typically undertaken at the highest levels of an entity, such as decisions about governance and management, the allocation of resources and strategic direction.

 

Because the amendment will make it clear that judges and Head of Missions are not ‘officers’ when acting in that capacity, the amendment may limit the right to safe and healthy working conditions.

 

The legitimate objective of the amendment is to clarify who is ‘officer’ for the purposes of the WHS Act. The amendment is reasonable, necessary and proportionate for a number of reasons.

 

Judges

The amendment is necessary to clarify that section 27 does not apply to judges. Although judges occupy a senior role in their organisations the principle of judicial immunity already operates to limit the application of the WHS Act. At common law, persons exercising judicial functions in a court are exempt from any civil liability in respect of anything said or done by them in their judicial capacity, and to a large extent criminal liability as well. It is not appropriate that the WHS Act purports to regulate the role of judges in their capacity as leaders of the court.

The amendment is proportionate. Judges retain a duty to take reasonable care for their own health and safety and the health and safety of other persons. Other health and safety duties, for example - those of the Principal Registrar, are also unaffected.

 

Heads of Mission

 

The amendment is also necessary to clarify that section 27 does not apply to a Head of Mission. Heads of Mission are in a unique position, having overarching responsibility for the conduct of the Commonwealth as a whole, and not just for their agency, in a particular country or group or countries. Although a Head of Mission may have some responsibility for work health and safety matters it is not intended that this would make them an ‘officer’ for the purposes of the WHS Act.

 

The amendment is proportionate as Heads of Mission continue to have duties as workers under section 28 of the WHS Act. To the extent Heads of Mission make decisions affecting the health and safety of others, they continue to have a statutory duty to exercise reasonable care. The duties of other senior government officials to exercise due dilligence (for example the Secretary of the Department of Foreign Affairs and Trade) is also not affected by the clarification.

 

Conclusion

The Bill is compatible with human rights because it generally promotes human rights and, to the extent it limits human rights, these limitations are reasonable, necessary and proportionate.

Minister for Employment, Senator the Hon. Michaelia Cash



NOTES ON CLAUSES

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

AAT

Administrative Appeals Tribunal

AAT Act

Administrative Appeals Tribunal Act 1975

Advisory Group

The Seacare Advisory Group

AMSA

Australian Maritime Safety Authority

Bill

Seafarers and Other Legislation Amendment Bill 2016

Levy Act

Seafarers Rehabilitation and Compensation Levy Act 1992

Levy Collection Act

Seafarers Rehabilitation and Compensation Levy Collection Act 1992

Levies Bill

Seafarers Safety and Compensation Levies Bill 2016

Levies Collection Bill

Seafarers Safety and Compensation Levies Collection Bill 2016

MLC

Maritime Labour Convention

NIIS

National Injury Insurance Scheme

OPGGS Act

Offshore Petroleum and Greenhouse Gas Storage Act 2006

OHS(MI) Act

Occupational Health and Safety (Maritime Industry) Act 1993

Seacare Authority

Seafarers Rehabilitation and Compensation Authority

Seacare Review

Review of the Seacare Scheme by Mr Robin Stewart-Crompton (Report - March 2013)

Seafarers Act

Seafarers Rehabilitation and Compensation Act 1992

SRC Act

Safety, Rehabilitation and Compensation Act 1988

SRCC

Safety, Rehabilitation and Compensation Commission

WHS

Work Health and Safety

WHS Act

Work Health and Safety Act 2011

 

 

Clause 1 - Short title

1.                   Clause 1 provides for the short title of the Act to be the Seafarers and Other Legislation Amendment Act 2016 .

Clause 2 - Commencement

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

3.                   Sections 1 to 3 and anything in the Act not elsewhere covered in the table commence on the day the Act receives the Royal Assent.

4.                   Schedule 1, Part 3 of Schedule 2, Division 2 of Part 4 of Schedule 2, Parts 4 to 7 of Schedule 3 and Division 2 of Part 9 of Schedule 3 commence on 1 July 2017.

5.                   Part 2 of Schedule 2 and Part 3 of Schedule 3 (which implement obligations under the Maritime Labour Convention) commence the later of the 28 th day after the Act receives the Royal Assent and 1 January 2017.

6.                   The remainder of the provisions commence the day after the Act receives the Royal Assent.

Clause 3 - Schedules

7.                   This clause 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.

8.                   The Bill comprise 3 schedules:

·          Schedule 1 repeals the Financial Management and Accountability (Establishment of Special Account) Determination 2002/06, the OHS(MI) Act, the Levy Act and the Levy Collection Act;

 

·          Schedule 2 makes amendments to the Seafarers Act, the SRC Act, the WHS Act and to a number of other Commonwealth Acts and instruments; and

 

·          Schedule 3 contains detailed transitional provisions.

 



schedule 1 - repeals

9.                   Schedule 1 repeals various Acts that are part of the Seacare scheme.

Financial Management and Accountability (Establishment of Special Account) Determination 2002/06

Item 1 - The whole of the determination

10.               Item 1 repeals the Financial Management and Accountability (Establishment of Special Account) Determination 2002/06 . This establishes the special account for the current Safety Net Fund.

11.               The Special Account will be continued in existence by section 107 of the Seafarers Act, as a special account under that Act.

Occupational Health and Safety (Maritime Industry) Act 1993

Item 2 - The whole of the Act

12.               Item 2 repeals the OHS(MI) Act.

13.               Item 191 of Schedule 2 amends the WHS Act to extend its application in place of the OHS(MI) Act. Part 6 of Schedule 3 provides transitional arrangements in relation to this.

Seafarers Rehabilitation and Compensation Levy Act 1992

Item 3 - The whole of the Act

Seafarers Rehabilitation and Compensation Levy Collection Act 1992

Item 4 - The whole of the Act

14.               Items 3 and 4 repeal the Levy Act and Levy Collection Act. They will be replaced by the Acts created by the Seafarers Safety and Compensation Levies Bill 2016 and the Seafarers Safety and Compensation Levies Collection Bill 2016.

15.               Part 5 of Schedule 3 provides transitional provisions for the repeal of these Acts.



SCHEDULE 2  - AMENDMENTS

Part 1 - Catastrophic injuries to seafarers etc.

Seafarers Rehabilitation and Compensation Act 1992

16.               Part 1 of Schedule 2 amends the Seafarers Act to insert a new definition of ‘catastrophic injury’ and provide for the payment of uncapped weekly compensation for household and attendant care services obtained as a result of catastrophic injury.

17.               The NIIS is being developed as a federated model of separate, state-based no-fault schemes that provide lifetime care and support for people who have sustained a ‘catastrophic injury’ caused by four types of accidents: motor vehicle accidents, workplace accidents, medical accidents and general/other accidents. The NIIS builds on existing accident compensation schemes - for example, for workplace accidents - to complement the National Disability Insurance Scheme (NDIS).

18.               The amendments in this Part will align the workers’ compensation arrangements for the Seacare scheme with minimum benchmarks proposed for the NIIS for compensation for household and attendant care services. Compensation is payable for household and attendant care services under section 43 of the Seafarers Act. The new provision will remove the cap on compensation for catastrophic injuries.

Item 1 - Section 3

19.               ‘Catastrophic injury’ will be defined by the legislative rules and will be a subset of ‘injury’ as defined in section 3. The intention is that the definition will reflect that in the NIIS.

Item 2 - Section 43 (heading)

20.               This item repeals the heading in section 43 and substitutes a new heading consequential to the amendments in items 3 and 4.

Item 3 - Subsections 43(1) and (4)

21.               This item amends subsections 43(1) and (4) to make clear that compensation in respect of an injury under section 43 applies as a result of an injury to an employee that is a non-catastrophic injury. Section 43 sets out the criteria for determining whether household and attendant care services are reasonably required and the qualification requirements for providers of attendant care services. Subsections 43(2) and 43(4) respectively set out the amount payable per week as compensation for household services and attendant care services that an employee reasonably requires as a result of an injury to the employee. Subsection 43(6) provides that compensation for household services is generally not payable within the first 28 days starting on the day of the injury.

Item 4 - At the end of Division 5 of Part 2

22.               This item inserts a new section 43A that provides for the payment of weekly compensation for household and attendant care services obtained as a result of an injury that is a catastrophic injury. The criteria for determining whether household and attendant care services are reasonably required and the qualification requirements for providers of attendant care services remain the same as those under section 43. However, section 43A does not provide a capped amount of weekly compensation payable for household and attendant care services, rather the amount payable is such amount as is ‘reasonable in the circumstances’. Further, section 43A does not exclude compensation for household services for the first 28 days after the day of the injury, meaning that compensation under section 43A for household services is available from the date of injury. There is no limit on the length of time household and attendant care services remain compensable.

Item 5 - Subsection 76(1) (definition of determination )

23.               This item amends subsection 76(1) consequential to the amendments in item 4 to insert new section 43A in the definition of determination for the purposes of reconsideration of determinations and reviews of decisions by the AAT (see Part 6 of the Seafarers Act).

Item 6 - At the end of Part 9

24.               This item inserts new section 144 which enables the Minister to make legislative rules prescribing matters required or permitted by this Act to be prescribed by the rules or rules that are necessary or convenient to be prescribed for carrying out or giving effect to the Act. These rules are legislative instruments.

25.               Subsection 144(2) makes clear that the legislative rules may not create an offence or civil penalty, provide powers of arrest or detention or entry, search or seizure, impose a tax, set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Act or directly amend the text of the Act.

Part 2 - Implementation of amendments to the Maritime Labour Convention relating to insurance obligations of employers of seafarers

Seafarers Rehabilitation and Compensation Act 1992

26.               Part 7 of the Seafarers Act requires employers to be insured or indemnified for the full amount of the employer’s liability under that Act and to notify its employees and the SRCC of its insurance or indemnification arrangements. These amendments are necessary to give effect to recent amendments to the Maritime Labour Convention.

27.               Breaches of the provisions are strict liability offences. This means the prosecution will have to prove only the conduct of the accused. Where the accused produced evidence of an honest and reasonable, but mistaken, belief, it will be incumbent on the prosecution to establish that there was not an honest and reasonable mistake of fact.

28.               The application of strict liability to offences in this Part has been carefully considered during drafting of the Bill and it is considered justified because of the regulatory context in which they are imposed. There is a public interest in ensuring that the regulatory requirements are observed and employers can reasonably be expected, because of their professional involvement, to know the requirements of the law. Offences are subject to low penalty amounts (20 penalty units).

 

 

Item 7 - At the end of section 93

29.               This item inserts new subsection 93(5) which requires an employer, when applying for membership of a protection and indemnity association or an employers’ mutual identity association, to provide the association with full details of all monetary and non-monetary remuneration paid to or provided to employees relevant to the working out of the membership fee.

30.               New subsection 93(6) provides that state or territory stamp duty is not payable on an employer’s membership of a protection and indemnity association or an employers’ mutual indemnity association in respect of employer liabilities under the Act. This is consistent with the exemption in respect of policies of insurance or indemnity.

Item 8 - After section 94

31.               This item inserts new section 94A which requires an employer to notify the Seacare Authority of any changes to, or cancellation of, a policy or membership, as the case may be. An employer must do so within 14 days of the change, cancellation or termination, as the case may be. The requirement to notify the Authority will only apply until the transition time  (see Part 7 of Schedule 3). After the transition time, an employer will be required to notify the SRCC.

32.               New subsection 94A(2) provides that a person who fails to provide these details commits an offence and may be liable to a penalty of 20 penalty units. Subsection 94A(3) provides that this offence is an offence of strict liability.

Item 9 - At the end of Division 1 of Part 7

33.               This item inserts new sections 95A and 95B. New section 95A requires an employer who becomes aware that the employer’s policy or membership is to be cancelled or terminated, to notify each employee of that fact. The employer must do so as soon as practicable after becoming aware that the policy or membership is to be cancelled or terminated and before the policy or membership is cancelled or terminated.

34.               New subsection 95A(2) provides that an employer that fails to provide these details commits an offence and may be liable to a penalty of 20 penalty units. New subsection 95A(3) provides that this offence is an offence of strict liability.

35.               New section 95B requires an employer or an operator of an Australian registered vessel (where the vessel is operated by a person other than the employer) to display a certificate of insurance that complies with the requirements of subsection 95B(2) and an information statement that complies with the requirements of subsection 95B(3) on board the vessel.

36.               New subsection 95B(5) provides that a person who fails to display this information commits an offence and may be liable to a penalty of 20 penalty units. Subsection 95B(6) provides that this offence is an offence of strict liability.

37.               New subsection 95B(7) provides the definition of ‘operator’ of a vessel in this section as a person with overall general control and management of the vessel or a person who has assumed responsibility for the vessel from a person mentioned in paragraph (a) or a person who has a legal or beneficial interest in the vessel. ‘Vessel’ is defined in this section as a ship.

Part 3 - Other amendments relating to seafarers

38.               This schedule makes amendments to the following Acts and instruments as a consequence of the repeal of the OHS(MI) Act and other amendments made in Schedule 2:

·          Offshore Petroleum and Greenhouse Gas Storage Act 2006;

·          Safety, Rehabilitation and Compensation Act 1988;

·          Seafarers Rehabilitation and Compensation Act 1992;

·          Work Health and Safety Act 2011.

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Item 10 - Subsection 640(3) (paragraph (b) of the definition of Commonwealth maritime legislation )

39.               This item makes a consequential amendment to subsection 640(3) of the OPGGS Act to maintain the current exclusion of maritime WHS legislation to facilities subject to the OPGGS Act (which contains its relevant WHS regulation). To avoid regulatory overlap, this section makes it clear that the WHS Act as it applies to the maritime industry because of new subsection 12(8A) (inserted by item 191 of this Schedule) does not apply to facilities to which the OPGGS Act applies.

Safety, Rehabilitation and Compensation Act 1988

Item 11 - Subsection 4(1)

40.               This item inserts definitions of the terms ‘designated actuary’ and ‘Seacare Advisory Group’ (see item 17 below).

Item 12 - Section 69 (note)

41.               This item amends the note to section 69 of the SRC Act by inserting a reference to the Seafarers Act in the list of legislation that confers additional functions on Comcare.

Item 13 - Section 72A (heading)

Item 14 - Subsection 72A(1)

Item 15 - Subsection 72A(2)

42.               These items amend section 72A of the SRC Act as a consequence of the abolition of the Seacare Authority.

Item 16 - Section 89B (note)

43.               This item amends the note to section 89B of the SRC Act by inserting a reference to the Seafarers Act and the Seafarers and Other Legislation Amendment Act 2016 in the list of legislation that confers additional functions on the SRCC.

Item 17 - After section 89R

44.               This item inserts new section 89RA into the SRC Act. This will enable the Chairperson of the SRCC to establish a Seacare Advisory Group (the Advisory Group).

45.               While section 89RA provides the Chairperson with discretion and flexibility in relation to establishment of the Advisory Group, it is intended that the Advisory Group would be established, particularly during the initial transition of functions from the Seacare Authority to the SRCC. The Advisory Group will provide important advice and recommendations on certain functions of the SRCC in relation to the Seacare scheme.

46.               Subsection 89RA(2) sets out the matters about which the Advisory Group will provide assistance to the SRCC and advice or information to the SRCC or Comcare. The functions of the Advisory Group are:

·       Assisting the SRCC to perform its functions in relation to granting opt-in declarations and exemptions under the Seafarers Act, and developing Seacare-specific codes of practice under the WHS Act; and

·       Giving advice or information to the SRCC, upon request, on matters relating to the Seacare scheme Acts; and

·       Giving advice or information to Comcare about compliance by employers with insurance obligations under section 93 of the Seafarers Act; and

·       Giving advice or information to Comcare where the Advisory Group considers information or advice is likely to assist Comcare to perform its functions or exercise its powers under the Act. Comcare may also request information or advice from the Advisory Group; and

·       Providing advice or information to the designated actuary, upon request, about matters relating to the performance of its powers under the Seafarers Safety and Compensation Levies Act 2016 and the Seafarers Safety and Compensation Levies Collection Act 2016 ; and

·       Such other functions as are conferred on the Advisory Group by a law of the Commonwealth other than this Act; and

·       To do anything incidental to or conducive to the performance of any of the above functions.

47.               New subsections 89RA(3) and 89RA(5) require the SRCC and Comcare to have regard to advice or information given by the Advisory Group, but new subsections 89RA(4) and 89RA(6) make clear that this does not limit the matters to which the SRCC and Comcare may have regard.

48.               New subsection 89RA(7) provides that in exercising his or her powers under the Seafarers Safety and Compensation Levies Act 2016 , the designated actuary must have regard to any relevant advice or information given to him or her by the Advisory Group. Subsection 89RA(8) clarifies that subsection 89RA(7) does not limit the matters to which the designated actuary may have regard.

49.               New subsection 89RA(9) makes clear that the Advisory Group has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

50.               New subsections 89RA(10)-(18) set out the membership of the Advisory Group. The Advisory Group must have a minimum of two members (but can have more). At least one member must be an employee representative and at least one must be an employer representative.

51.               New subsections 89RA(13) and (14) deal with remuneration and allowances for members. Members will not be paid, but may be reimbursed for their expenses.

52.               New subsections 89RA(15)-(18) deal with termination, resignation and terms and conditions of appointment.

53.               New subsection 89RA(19) provides that the Chair will determine the procedures of the Advisory Group.

54.               New subsection 89RA(20) provides that the Advisory Group must give the SRCC, on request, such reports, documents and information relating to the Advisory Group’s functions.

Item 18 — At the end of section 89S

55.               This item inserts a new subsection into section 89S, which sets out the annual reporting obligations of the SRCC.

56.               The new subsection will require the SRCC’s annual report to include details of the Advisory Group, if it was constituted under new section 89RA, during the whole or part of a financial year. Subsection 89S(4) provides that if the Advisory Group is not constituted under section 89RA during the whole or part of a financial year, a report under section 89S for the financial year must include a statement that sets out the reasons why the Advisory Group was not so constituted.

57.               New subsection 89S(5) makes clear that the requirements under subsection (4) do not apply to a financial year that ended before the commencement of the subsection.

Seafarers Rehabilitation and Compensation Act 1992

Item 19 - Section 3

58.               This item defines ‘action for non-economic loss’ for the purposes of new subsection 55(6).

 

Item 20 - Section 3 (paragraph (a) of the definition of approved Guide )

59.               This item substitutes Comcare for the Seacare Authority in the definition of ‘approved Guide’ to transfer the function of preparing the Guide from the Seacare Authority to Comcare, consequential to the abolition of the Seacare Authority.

Item 21 - Section 3 (definition of approved industry training course )

60.               This item repeals the definition consequential to the abolition of the Seacare Authority.

Item 22 - Section 3

61.               This item inserts a definition for ‘Australia’, when used in the geographical sense, as including the external Territories and ‘Australian coastal sea’ as meaning the area comprising the territorial sea of Australia and the sea on the landward side of the territorial sea of Australia and not within the limits of a state or territory.

Item 23 - Section 3 (definition of Australian General Shipping Register )

Item 24 - Section 3 (definition of Australian International Shipping Register )

Item 25 - Section 3 (definition of Australian Maritime Safety Authority )

Item 26 - Section 3 (definition of Authority )

Item 27 - Section 3 (definition of Chairperson )

Item 28 - Section 3 (definition of coastal trading )

62.               These items repeal the definitions of ‘Australian General Shipping Register’, ‘Australian International Shipping Register’, ‘Australian Maritime Safety Authority’, ‘Authority’, ‘Chairperson’ and ‘coastal trading’. Items 23, 24 and 28 are no longer necessary.  These items describe one aspect of the coverage of the Act by referring to types of licence issued under the Coastal Trading (Revitalising Australian Shipping) Act 2012 .  The vessels engaging in costal trading will be captured by the other elements in the coverage provisions set out in this Bill.

Item 29 - Section 3

63.               This item inserts a definition of ‘Commission’ as meaning the SRCC. The note to the provision makes clear that the SRCC is established by section 89A of the SRC Act.

Item 30 - Section 3 (definition of company trainee )

64.               This item repeals the definition as it is no longer in use.

Item 31 - Section 3 (definition of constitutional corporation )

65.               This item inserts a new definition of ‘constitutional corporation’.

66.               ‘Constitutional corporation’ is defined as a corporation to which paragraph 51(xx) of the Constitution applies; the basic coverage rules rely on employment of an employee by a constitutional corporation as one of the conditions for coverage in section 25B (see item 84) .

Item 32 - Section 3 (definition of default event )

67.               This item inserts a new definition of ‘default event’.  ‘Default event’ is used in new section 4A to mean an insolvency event resulting in an employer being unable to meet its liabilities under the Seafarers Act. Comcare may, by writing, declare that it is satisfied that the employer is unable to meet its liabilities under the Act and must publish the declaration under subsection 4A(1) on its website. The effect of Comcare declaring a default event is that Comcare is deemed to be an employer of the employee for the purposes of the Seafarers Act (see items 67 to 69 below). This means that various sections which refer to ‘an employer’ will apply to Comcare, with certain limited exceptions.

Item 33 - Section 3 (definition of designated waters)

68.               This item inserts a new definition of ‘designated waters’ of a state.  ‘Designated waters’ is used to define the meaning of ‘intra-State voyages or tasks’ in section 25B (see item 84). In general terms, ‘designated waters’ are defined to include all waters out to the 12 nautical mile territorial sea.

Item 34 - Section 3 (definition of disease )

69.               This item repeals the definition and substitutes a new definition set out in new section 5B (see item 71).

Item 35 - Section 3 (definition of emergency licence )

70.                This item repeals the definitions of emergency licence and general licence because they are no longer necessary (see item 41).  These types of licence were issued under the Coastal Trading (Revitalising Australian Shipping) Act 2012 ).  The vessels engaging in coastal trading will be captured by the other elements in the coverage provisions in this Bill.

Item 36 - Section 3 (definition of financial corporation )

71.               This item repeals the definition. The definition is replaced by part of the new definition of ‘constitutional corporation’.

Item 37 - Section 3

72.               This item inserts new definitions for ‘fish’, ‘fishing fleet support vessel’, ‘fishing operations’ and ‘fishing vessel’. These definitions are used in new section 3B and are relevant to the amendments made by item 62. ‘Fish’ includes turtles, dugong, crustacea, molluscs and any other living resources of the sea or the seabed. ‘Fishing operations’ is defined as the taking, catching or capturing of fish for trading or manufacturing purposes or the processing or carrying of the fish that are taken, caught or captured. ‘Fishing fleet support vessel’ means a vessel that is used wholly or primarily in activities in support of the fishing operations of a fishing vessel or vessels, but does not include an inland waterways vessel (see section 3B also).

Item 38 - Section 3 (definition of foreign corporation )

73.               This item repeals the definition. The definition is replaced by part of the new definition of ‘constitutional corporation’.

Item 39 - Section 3

74.               This item inserts a definition for ‘foreign vessel’ which means a ship (within the meaning of the Shipping Registration Act 1981 ) that does not have Australian nationality.

Item 40 - Section 3 (definition of Fund )

Item 41 - Section 3 (definition of general licence )

75.               These items repeal definitions that are no longer required consequential to other amendments made by the Bill. For item 41, the definition of general licence is no longer necessary. This type of licence was issued under the Coastal Trading (Revitalising Australian Shipping) Act 2012 . The vessels engaging in coastal trading will be captured by other elements in the coverage provisions set out in this Bill.

Items 42 and 43 - Section 3 (definition of Government ship and harbour )

76.               Item 42 repeals the definition of ‘government ship’. Item 43 inserts a new definition of ‘government vessel’. This item also inserts a new definition of ‘harbour’. These definitions are based on the definitions in the (now repealed) Navigation Act 1912 and are used in section 3A (see item 62 below).

Item 44 - Section 3 (definition of industry trainee )

77.               This item repeals the definition of industry trainee as this term is no longer used in the industry.

Item 45 - Section 3 (definition of injury )

78.               This item repeals the definition of ‘injury’ and substitutes a new definition as set out in new section 5A (see item 71).

Item 46 - Section 3

79.               This item inserts two new definitions for ‘inland waterways vessel’ and ‘local tourism vessel’. These terms are used in section 3A.

Item 47 - Section 3 (at the end of the definition of medical treatment )

80.               This item amends the definition of ‘medical treatment’ to enable legislative rules to prescribe anything else for the purposes of the definition. This ensures that the definition aligns with the definition of ‘medical treatment’ under the SRC Act.

Item 48 - Section 3 (definition of member )

81.               This item repeals the definition of ‘member’ consequential to the abolition of the Seacare Authority.

Item 49 - Section 3

82.               This item defines ‘offshore floating storage or production unit’ as having the meaning set out in new section 3D and ‘offshore industry mobile unit’ as having the meaning set out in new section 3C. The item also inserts a definition of ‘operator’, ‘opt-in declaration’ and ‘pension age’. ‘Pension age’ has the same meaning as subsection 23(5A), (5B), (5C) or (5D) of the Social Security Act 1991 . This definition is used in relation to amendments in subsections 23(1A) and (1B) (see item 208) and subsection 44(2) (see item 99). References in the Seafarers Act to age 65 years (what once used to be the maximum pension age) will be replaced by references to ‘pension age’.

Item 50 - Section 3 (paragraph (a) of the definition of place of work )

83.               This item omits ‘ship’ and substitutes ‘vessel’ in the definition of ‘place of work’.

Item 51 - Section 3 (paragraph (b) of the definition of place of work )

84.               This item repeals the paragraph and substitutes a new definition to make clear that if an employee is a trainee, then the place of work includes the prescribed vessel on which the employee performs the role of a trainee.

Item 52 - Section 3

85.               This item inserts a new definition for ‘port’ which includes a ‘harbour’.

Item 53 - Section 3 (definition of prescribed ship )

86.               This item repeals the definition of ‘prescribed ship’.

Item 54 - Section 3

87.               This item inserts a new definition for ‘prescribed vessel’ and ‘recreational vessel’ as having the meaning in section 3A (see item 62 below). This item also inserts the definition of ‘registered organisation’ as meaning an organisation registered under the Fair Work (Registered Organisations) Act 2009 . It also inserts a definition of ‘sea’ as any waters within the ebb and flow of the tide.

Item 55 - Section 3 (definition of seafarer )

88.               This item repeals the definition of ‘seafarer' and inserts a new definition of ‘seafarer’. ‘Seafarer’ means a person employed on a prescribed vessel, on the business of the vessel, other than specified categories of persons. The term is consistent with the Navigation Act 2012.

  Item 56 - Section 3 (definition of seafarer berth )

89.               This item repeals the definition.

Item 57 - Section 3

90.               This item inserts a definition for the ‘seafarers insurance levy’. It has the same meaning as in the Seafarers Safety and Compensation Levies Act 2016 .

Item 58 - Section 3

91.               This item inserts the definition of ‘significant degree’ in the Seafarers Act.

92.               The new definition of ‘significant degree’ means a degree that is substantially more than material. This definition is used in new section 5B in relation to the definition of ‘disease’ (see item 71).

Item 59 - Section 3 (definition of superannuation scheme )

93.               This item repeals the definition of ‘superannuation scheme’ and inserts a new definition. The new definition reflects modern superannuation arrangements.

Item 60 - Section 3 (definition of trainee )

94.               This item repeals the existing definition and inserts a new definition of ‘trainee’ as a person who is undergoing a training course or is obtaining sea service as required by his or her employer, prior to becoming a seafarer. The definition of ‘trainee’ has been simplified to remove outdated references to ‘industry trainees’.

Item 61 - Section 3

95.               This item inserts definitions of ‘transitional declaration’ and ‘vessel’. Transitional declarations will be granted under Part 8 of Schedule 3 and are explained in the explanatory notes for those provisions. This mechanism will enable vessels that are in the current scheme but are not prescribed vessels under section 3A (as amended by item 62) to stay in the scheme. The definition of ‘vessel’ brings into the Seafarers Act the words taken from the (repealed) Navigation Act 1912.

Item 62 - Section 3A

New section 3A

96.               This item repeals existing section 3A which relates to Ministerial declarations. These ministerial declarations are replaced by legislative rules made under new subsections 3A(2) and (3). The item inserts a new definition of ‘prescribed vessel’ in subsection 3A(1). ‘Prescribed vessel’ is a key concept in the Bill and is used to delineate coverage of the Act.

97.               Paragraphs 3A(1)(a) and (b) replicate the effect of the current definition of ‘prescribed ship’ in the Seafarers Act, which refers to the (now repealed) Navigation Act 1912 . Paragraph 3A(1)(a) generally replicates paragraph 10(a) of the Navigation Act 1912 , while paragraph 3A(1)(b) generally replicates paragraph 10(c) of that Act, but without the requirement for the ship to have an Australian-based owner or operator. Paragraph 3A(1)(c) provides that a vessel that is declared under subsection (2) to be a prescribed vessel is also a prescribed vessel for the purposes of subsection 3A(1).

98.               An Australian vessel that is neither registered nor required to be registered under the Shipping Registration Act 1981 will not be a ‘prescribed vessel’. These vessels may currently be captured by the definition of ‘prescribed ship’, depending on its ownership or place of operation. These vessels may still seek transitional coverage.

99.               Paragraphs 3A(1)(d)-(k) exclude certain types of vessels. Most of these definitions (and related provisions) are based on pre-existing maritime legislation:

·                      ‘recreational vessel’ is defined consistently with the Navigation Act 2012 ;

·                      ‘inland waterways vessel’ is defined consistently with the (repealed) Navigation Act 1912 ;

·                      ‘fishing vessel’ and ‘fishing fleet support vessel’ are defined consistently with the (repealed) Navigation Act 1912 (see new section 3B);

·                      ‘offshore floating storage or production unit’ is defined consistently with Marine Orders - Part 60: Floating Offshore Facilities (see new section 3D). This term encapsulates both ‘floating, production, storage and offtake’ facilities and ‘floating storage units’;

·                      ‘offshore industry mobile unit’ is defined consistently with the (repealed) Navigation Act 1912 (see new section 3C);

·                      ‘government vessel’ is already defined in the Seafarers Act. Importantly, this term does include vessels which belong to the Australian Defence Force, but does not include a government owned vessel which is privately operated, which will be a prescribed vessel.

100.           Paragraph 3A(1)(k) excludes a ‘local tourism vessel’ which is defined in section 3 to mean a vessel that is wholly or predominately engaged in tourism, other than tourism which involves international, interstate or inter-territorial (other than to the Coral Sea Islands Territory) voyages. ‘Tourism’ is not defined in the Bill and is intended to have its ordinary meaning. This definition is intended to capture vessels engaged in the marine tourism industry providing services such as transport, sightseeing or diving. 

101.           Paragraph 3A(1)(l) excludes vessels that have been declared not to be a prescribed vessel. The legislative rules may declare a vessel to be, or not to be, a prescribed vessel. This replicates the power in current section 3A of the Seafarers Act (which will be repealed) for the Minister to declare to ship to be, or not to be, a ‘prescribed ship’.

102.           Vessels which are subject to a transitional declaration will also be ‘prescribed vessels’ except in relation to Divisions 2 and 3 of Part 1A (meaning that they cannot apply for an opt-in declaration or an exemption). Transitional declarations will be granted under Part 8 of Schedule 3 to the Bill and are explained in the explanatory notes for those provisions. This mechanism will enable vessels that are in the current scheme but are not prescribed vessels under new section 3A to stay in the scheme.

New section 3B - Fishing vessels

103.           This section defines the terms ‘fishing vessel’ and ‘fishing fleet support vessel’, which are excluded from the definition of ‘prescribed vessel’ in new section 3A. These definitions are the same as those used in the (repealed) Navigation Act 1912 .

 

New section 3C - Offshore industry mobile unit

104.           This section defines the term ‘offshore industry mobile unit’, which means an ‘offshore industry drilling vessel’, ‘offshore industry floating structure’ and ‘offshore industry living quarters barge’, which in turn includes a vessel fitted for living quarters for more than 12 people and is an ‘offshore industry fixed structure’. Each of these is defined. An offshore industry mobile unit is excluded from the definition of ‘prescribed vessel’ in new section 3A. This definition is the same as that used in the (repealed) Navigation Act 1912 (subject to some drafting modernisations).

New section 3D - Offshore floating storage or production unit

105.           This section defines the term ‘offshore floating storage or production unit’, which is excluded from the definition of ‘prescribed vessel’ in new section 3A. This definition is consistent with Marine Orders - Part 60: Floating Offshore Facilities . This term encapsulates both ‘floating, production, storage and offtake’ facilities and ‘floating storage units’.

Item 63 - Subsection 4(1) (paragraph (b) of the definition of employee )

106.           This item omits ‘or’ from the definition consequential to the amendment in item 64 repealing paragraph 4(1)(c) of the definition of ‘employee’.

Item 64 - Subsection 4(1) (paragraph (c) of the definition of employee )

107.           This item repeals paragraph (c) from the definition of ‘employee’ as it is no longer relevant in the industry.

Item 65 - At the end of subsection 4(1)

108.           The note to subsection 4(1) draws the reader’s attention to section 18A of the Acts Interpretation Act 1901 . This states that definitions of words also apply to other grammatical forms of the word.

Item 66 - Subsection 4(2)

109.           This item repeals subsection 4(2) as ‘industry trainees’ and ‘Seafarers Engagement Centre’ are terms that are no longer relevant to the industry. See also the repeal of the definition of industry trainee in section 3 (see item 44).

Item 67 - Subsection 4(3)

110.           This item repeals the subsection and replaces it with a new subsection 4(3) which ensures that a reference to an ‘employee’ continues to apply to claimants even if they cease employment with the employer where they suffered an injury to which the Seafarers Act applies. The subsection also provides that if a ‘default event’ occurs in relation to the employer of a seafarer or trainee, then for the purposes of the Seafarers Act, the seafarer or trainee is taken to be employed by Comcare (rather than the Seacare Authority) and Comcare is taken to be their employer. The term ‘default event’ is defined in new subsection 4A to mean an insolvency event resulting in the employer being unable to meet the employer’s liabilities under the Seafarers Act. The effect of this provision is that in these circumstances Comcare is deemed to be an employer of the employee for the purposes of the Seafarers Act. This means that various sections which refer to ‘an employer’ will apply to Comcare, with certain limited exceptions.

Item 68 - Subsection 4(5)

111.           This clarifies that references to the ‘employment’ of a trainee is a reference to their performing the role of a trainee, for example, undergoing training and obtaining sea service.

Item 69 - After section 4

112.           In certain situations Comcare may become the responsible employer for an injury or accident under the Bill because of a ‘default event’. This provision specifies when a default event has occurred.

113.           If Comcare is satisfied that an employer is unable to meet its liabilities under the Seafarers Act, Comcare will declare in writing that a default event has occurred. These declarations will be published on Comcare’s website.

114.           New section 106 provides Comcare with information gathering powers, including for the purposes of determining if it should declare that a default event has occurred (see item 176).

115.           For the avoidance of doubt, subsection 4A(6) clarifies that a declaration under subsection 4A(1) is not a legislative instrument within the meaning of section 8 of the Legislation Act 2003 . This provision is declaratory of the law and does not amount to an exemption from the Legislation Act 2003 .

Item 70 - Section 5

116.           This item substitutes ‘vessel’ for ‘ship’ throughout the section.

Item 71 - After section 5

New section 5A - Injury

117.           New section 5A defines the term ‘injury’, a key provision of the Seafarers Act, as compensation is only payable in respect of an injury that meets this definition.

118.           The new definitions for ‘injury’ and ‘disease’ implement recommendation 4.4 of the Seacare Review. Recommendation 4.4 recommends that for clarity and consistency, the definitions of injury and disease in the Seafarers Act should be amended to align with sections 5A and 5B of the SRC Act.

119.           Subsection 5A(1) of the SRC Act has a different exclusionary provision for psychological injuries from the current definition in the Seafarers Act. The Seafarers Act currently excludes anything suffered by an employee as a result of ‘reasonable disciplinary action’ or an employee’s ‘failure to obtain a promotion, transfer or benefit’as an injury for the purposes of the Act. The SRC Act replaced these definitions with the broader concept of ‘reasonable administrative action taken in a reasonable manner’ in 2007. A new section 5A(2) was also added to the SRC Act providing a non-exhaustive list of the actions which may constitute ‘reasonable administrative action’.

120.           New subsection 5A(1) excludes from the definition of ‘injury’ any disease, injury or aggravation suffered by an employee as a result of ‘reasonable administrative action’. Subsection 5A(2) provides a non-exhaustive list of the actions which may constitute ‘reasonable administrative action’.

121.           This provision is consistent with a similar exclusion from the bullying provisions of the Fair Work Act 2009 —subsection 789FD(2) of that Act. Both section 789FD of the Fair Work Act 2009 and paragraph 5A(1) of the Bill recognise that employers have rights and obligations to take appropriate management action and make appropriate management decisions.

New section 5B - Disease

122.           Also in line with the Seacare Review recommendation 4.4, new subsection 5B(1) of the Bill defines ‘disease’ to align with a similar provision in subsection 5B of the SRC Act to mean an ailment or aggravation of an ailment that was ‘contributed to, to a significant degree, by the employee’s employment’. The term ‘ailment’ is defined in section 3 to mean any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). The term ‘significant degree’ is a new definition in section 3 and means ‘a degree that is substantially more than material’.

123.           The intent is to establish a test requiring a claimant to prove that his or her employment was more than a mere contributing factor in the contraction or aggravation of the ailment and ensure that an employer is not liable to pay compensation for ailments which have little, if any, connection with employment. The expression ‘significant degree’ is intended to emphasise the extent of the contribution of the employment to the condition as well as the causal connection between the employment and the condition.

124.           New subsection 5B(2) provides a non-exhaustive list of matters that may be taken into account in determining whether the ailment was contributed to, to a ‘significant degree’, by the employee’s employment. The matters include, but are not limited to:

·          the duration of the employment;

·          the nature of, and particular tasks involved in, the employment;

·          any predisposition of the employee to the ailment or aggravation;

·          any activities of the employee not related to his or her employment; and

·          any other matters affecting the employee’s physical or psychological health.

Item 72 - Section 9

125.           This item substitutes ‘vessel’ for ‘ship’ throughout the section.

Item 73 - Paragraph 9(2)(c)

Item 74 - Paragraph 9(2)(c)

126.           These items simplify the drafting of paragraph 9(2)(c).

Item 75 - Paragraph 9(2)(d)

127.           This item amends paragraph 9(2)(d) consequential to the amendment of the definition of ‘trainee’ in section 3.

Item 76 - Subparagraph 9(2)(e)(iii)

128.           This item repeals the subparagraph as Seafarers Engagement Centres are no longer used in the industry.

Item 77 - Subparagraph 9(2)(e)(v)

129.           This item clarifies the drafting to make clear that if the employee to whom the provision applies is a trainee, the trainee was undergoing training that he or she was required to obtain by his or her employer.

Item 78 - Subsection 9(3)

130.           This item omits paragraph 9(3)(iii).

Item 79 - After subsection 9(3)

131.           New subsections 9(3A),(3B) and (3C) provide that subparagraph 9(2)(e)(i), (iv), (v) or (vi) do not apply to an injury suffered by an employee while travelling in the circumstances set out in subsections 9(3A), (3B) and (3C). This means that if an employee suffers an injury while travelling, the injury will not be treated as having arisen in the course of employment unless one of the exceptions set out in the subsections applies.

132.           New subsection 9(3A) provides that if an employee suffers an injury while travelling from the employee’s place of work and the employee delayed commencing the travel for a private or domestic reason, the injury is not treated as having arisen in the course of employment unless:

·         The delay is attributable to circumstances beyond the control of the employee; or

·         The delay does not exceed 72 hours and the employer has given written agreement to the delay.

133.           New subsection 9(3B) provides that if an employee suffers an injury while travelling and the travel was by a route that was not direct having regard to the means of transport used and the reason for taking the indirect route was private or domestic, the injury is not treated as having arisen in the course of employment unless taking the route was attributable to circumstances beyond the employee’s control.

134.           New subsection 9(3C) provides that if an employee suffers an injury while travelling and there is an interruption of the travel and the reason for the interruption was private or domestic, the injury is treated as not having arisen in the course of employment unless:

·          the interruption is attributable to circumstances beyond the control of the employee; or

·         the interruption does not exceed 72 hours and the employer has given written agreement to the interruption.

Item 80 - Subsection 9(5)

135.           This item repeals the subsection, consequential to the repeal of the definition of ‘industry trainee’.

Item 81 - Subsection 13(3)

136.           This item repeals the subsection as Seafarers Engagement Centres are no longer relevant to the industry.

Item 82 - Section 19

137.           This item repeals section 19 which sets out the application of the Seafarers Act. New sections 25A to 25L set out new coverage arrangements for the Seafarers Act (see Part 3 of Schedule 2).

Item 83 - Section 20A

138.           This item repeals the exemption of employment provisions. New sections 25M to 25S set out arrangements for exemptions (see Part 3 of Schedule 2).

Item 84 - After Part 1

Part 1A - Coverage

139.           This Part deals with the coverage of the Seacare scheme.

140.           The existing Seacare scheme is confined in scope, only applying to employers and employees in a defined part of the broader maritime industry. The scheme generally covers employers and employees on ships which regularly operate in multiple states or internationally in order to ensure they have the benefit of a single national system of work health and safety and workers’ compensation. However, there are longstanding issues regarding the coverage of the existing scheme, creating uncertainty for governments, regulators, employers and employees.

141.           The Bill addresses the Seacare scheme’s longstanding coverage issues. The new coverage rules are broadly similar in scope to the current Seafarers Act but provide greater certainty and clarity.

Division 1 - Introduction

New section 25A - Simplified outline of this Part

142.           New section 25A contains a simplified outline of Part 1A. The simplified outline is included to assist readers to understand the substantive provisions of Part 1A, but is not intended to be comprehensive. Readers should rely on the substantive provisions of Part 1A.

 

 

 

Division 2 - Employment covered by this Act

New section 25B - Basic coverage rules

143.           New section 25B, together with the definition of ‘prescribed vessel’ (see new section 3A), sets out the proposed coverage of the Seafarers Act.

144.           New subsection 25B(1) provides that the Act applies to the employment of employees (defined in section 4) on a prescribed vessel, unless the vessel is used wholly or predominately for voyages or other tasks (defined in paragraph 25B(5)) which are wholly within the ‘designated waters’ (defined in section 3) of a particular state or the Northern Territory.

145.           The ‘designated waters’ of a particular state or territory are the portion of the ‘territorial sea’ which are adjacent to that state or territory, plus the internal waters of the state or territory. Generally, this term will capture all the waters within 12 nautical miles of the state or territory’s coastal line, plus their internal waters.

146.           Unlike the current coverage of the Seacare scheme, subsection 25B(1) will treat ships operating in the Northern Territory in the same way as ships operating in any state.

147.           New subsection 25B(2) extends coverage to trainees who are not currently employed on a prescribed vessel, but are undergoing an onshore training course in connection with, or for the purposes of, employment on a prescribed vessel. When trainees are obtaining sea service on a vessel covered by the Act, they will be covered by subsection 25B(1) as employees on a prescribed vessel.

148.           New subsection 25B(3) and paragraphs 25B(1)(b) and (2)(b) ensure that the Act only applies to vessels which the Commonwealth has sufficient constitutional power to regulate. For the Act to apply to a prescribed vessel it must satisfy the coverage test in paragraphs 25B(1)(a) or 25B(2)(a) (or have an opt-in declaration or transitional declaration — see sections 25C and 25D) and meet one or more of the constitutional conditions set out in subsection 25B(3). A vessel is not covered by the Seafarers Act merely because it meets one of the constitutional conditions in subsection 25B(3).

149.           New subsections 25B(5) and (6) clarify how the coverage rule will operate in relation to intra-state coastal shipping. The provisions are intended to make sure that a voyage between two places in the same state are treated as a voyage ‘wholly within’ that state’s (or territory’s) designated waters, even if the vessel left the designated waters for part of the voyage, because doing otherwise would not be reasonably practicable. This recognises that intra-state (or intra-territorial) shipping routes may involve a vessel to leaving the designated waters of a state (or territory) for a variety of reasons. Such voyages should still be treated as intra-state, given their beginning and end is within the same state, and vessel is only leaving the state’s designated waters because this is the safest or most effective route. A reference to a ‘particular State’ is synonymous with a ‘single State’. Subsection 25B(7) has the same effect for intra-territorial voyages.

 

 

 

Example 1 — Voyaging between states
 The Enterprise is a vessel registered on the Australian General Shipping Register under the Shipping Registration Act 1981 which is engaged to move cargo between Melbourne and Launceston. It is operated by, and crewed by employees of, an Australian company.
 The Enterprise satisfies paragraph 3A(1)(a) of the definition of ‘prescribed vessel’, and does not fall within any of the exclusions in paragraphs 3A(d)-(l). Its voyages between Melbourne and Launceston are not wholly within the designated waters of a particular state — they are in the designated waters of both Victoria and Tasmania, as well as the waters in between. Subclause 25B(5) will not apply to these voyages, because they begin and end in different states. As such, the vessel is not being used wholly or predominately for voyages, or other tasks, that are wholly in the designated waters of a particular state (or the Northern Territory), so paragraph 25B(1)(a) is satisfied.
 Because the employer of employees on the Enterprise is a constitutional corporation, the constitutional condition in paragraph 25B(3)(a) is satisfied. The conditions in paragraphs 25B(3)(b) and (d)(ii) would also be satisfied, however, it is only necessary to identify if one condition is satisfied.
 As such, the Seafarers Act will apply to the employment of employees on the Enterprise.
Example 2 — Voyaging within a state
 The Intrepid is a vessel registered on the Australian General Shipping Register under the Shipping Registration Act 1981 which is usually engaged to move cargo between Brisbane and Gladstone. However, it also moves some cargo between Brisbane and Sydney. It is operated by, and crewed by employees of, an Australian company.
 The Intrepid satisfies paragraph 3A(1)(a) of the definition of ‘prescribed vessel’, and does not fall within any of the exclusions in paragraphs 3A(d)-(l). Its voyages between Brisbane and Gladstone are either wholly within the designated waters of Queensland or, if there are parts of the voyage where it is not reasonably practicable for the Intrepid to remain within the designated waters of Queensland, subclause 25B(6) will apply, deeming the voyage to be within the designated waters of Queensland. Its voyages between Brisbane and Sydney will not be wholly within the designated waters of a particular state, because they will be (at least) within the designated waters of both Queensland and New South Wales. Subclause 25B(6) will not apply to these voyages, because they begin and end in different states.
 As long as the Intrepid is predominately used for the voyages and other tasks between Brisbane and Gladstone— that is, voyages and other tasks wholly within the designated waters of a particular state—it will not be covered by the Bill, because it will not satisfy paragraph 25B(1)(a). As such, the Seafarers Act will not apply to the Intrepid, even during occasional inter-state voyages and other tasks, as long as it is still predominately used for intra-state voyages and other tasks. Employees on the vessel would instead be covered by either state or Northern Territory workers’ compensation legislation, determined using the uniform ‘state of connection’ test set out in all state and territory workers’ compensation legislation.
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Example 3 — Offshore tasks
 The Serenity is a foreign-flagged vessel, owned and operated by a foreign corporation. Its crew are Australian residents. The Serenity operates as an offshore supply ship on the north-west coast of Australia in relation to off-shore platforms which are more than 12 nautical miles off the coast of West Australia.
 The Serenity satisfies paragraph 3A(1)(b) of the definition of ‘prescribed vessel’, and does not fall within any of the exclusions in paragraphs 3A(d)-(l). Its voyages and other tasks involve going outside the designated waters of Western Australia. As such, it is not wholly or predominately used for voyages or other tasks wholly within the designated waters of a particular state, so satisfies paragraph 25B(1)(a). 
 Because the employer of employees on the Serenity is a constitutional corporation, the constitutional condition in paragraph 25B(3)(a) is satisfied. The conditions in paragraphs 25B(3)(b) and (c) would also be satisfied, however, it is only necessary to identify if one condition is satisfied.
 As such, the Seafarers Act will apply to the Serenity.
Example 4 — Relocation voyages
 The Normandy is a vessel registered on the Australian General Shipping Register under the Shipping Registration Act 1981 which operates as a harbour tug. The Normandy operates in a harbour for various periods before moving to a new location—sometimes inter-state—to obtain more work. It is operated by, and crewed by employees of, an Australian company.
 The Normandy satisfies paragraph 3A(1)(a) of the definition of ‘prescribed vessel’, and does not fall within any of the exclusions in paragraphs 3A(d)-(l). While operating as a harbour tug, the Normandy does not leave the designated waters of its current state or territory. As such, during these times it is being used for voyages and tasks that are wholly within the designated waters of a particular state—that is, those voyages and tasks do not take it outside the designated waters of the state where it is currently operating. When the Normandy relocates, these voyages will often take it outside the designated waters of a particular state. However, unless these relocations are extremely regular, it will still be used predominately for voyages, or other tasks, that are wholly in the designated waters of a particular state.
 As such, the Seafarers Act would not apply to the Normandy, including when it is relocating between ports in different states. Employees on the vessel would instead be covered by either state or Northern Territory workers’ compensation legislation, determined using the uniform ‘state of connection’ test set out in all state and territory workers’ compensation legislation.
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



New section 25C - Opt-in vessels

150.           New section 25C will extend coverage to vessels which have opted into the scheme under Division 3 of Part 1A of the Bill.

151.           Subsection 25C(2) extends coverage to trainees who are not currently employed on a vessel that has opted in, but are undergoing training in connection with, or for the purposes of, employment on a vessel that has opted in.

152.           Subsections 25C(3) and (4) ensure that the Seafarers Act only applies to opt-in vessels which the Commonwealth has sufficient constitutional power to regulate.

153.           Subsection 25C(5) ensures that a vessel which has opted into the scheme will continue to be covered if any of the conditions on the opt-in declaration are breached. This will ensure that an employer’s breach of conditions do not affect an injured employee’s access to workers’ compensation and rehabilitation under the Seafarers Act.

New section 25D - Transitional Vessels

154.           New section 25D will extend coverage to vessels which are subject to a transitional declaration. Transitional declarations will be granted under Part 8 of Schedule 3 to the Bill and are explained in the explanatory notes for those provisions.

155.           Subsections 25D(3) and (4) ensure that the Seafarers Act only applies to transitional vessels which the Commonwealth has sufficient constitutional power to regulate.

Division 3 - Opt-in declarations

156.           This Division provides a mechanism whereby vessels can opt-in to the scheme. Opt-in declarations will be granted by the SRCC on application by an owner, operator or employer.

157.           The introduction of an opt-in mechanism implements recommendation 2.3(a) of the Seacare Review.

New section 25E - Application for opt-in declaration

158.           This section enables the owner or operator of a prescribed vessel, or an employer of employees on a prescribed vessel, to apply to the SRCC for an opt-in declaration in relation to the vessel.

159.           Subsections 25E(2), (3), (4), (5) and (6) set out various requirements in relation to an application.

160.           Subsection 25E(6) enables the application form to require the applicant to state they have taken reasonable steps to inform affected employees and their representatives of the application. Because an application for an opt-in declaration could affect the workers’ compensation entitlements and work health and safety protections of employees on the vessel, it is important these employees are made aware of the application.

161.           The application form will not require the applicant to directly notify every affected employee—this would be excessively burdensome. The applicant must take reasonable steps to inform their employees, for example by posting notices around the affected vessel and/or including a notice about the application in a staff newsletter. If the opt-in declaration is granted, it will also be published on the SRCC’s website (see subsection 25H(13)).

162.           The duration of an opt-in declaration cannot exceed three years (1,095 days). However, subsections 25E(8) and 25E(9) deal with renewal applications that, in effect, extend the duration of an opt-in declaration for up to another three years. If an application to renew an opt-in declaration is made more than 28 days before the existing declaration would expire, the existing declaration will continue in effect until the renewal is either granted or refused.

New section 25F - Further information

163.           This clause empowers the SRCC to seek further information in relation to an application for an opt-in declaration. A failure to comply with an information request may result in the SRCC refusing to consider, or take any action in relation to, the application.

New section 25G - Withdrawal of application

164.           This section provides that an applicant may withdraw an application for an opt-in declaration and that this does not prevent the applicant subsequently making a fresh application. If an application is withdrawn, the SRCC must refund any fee paid in relation to the application.

New section 25H - Opt-in declaration

165.           This section provides that the SRCC must consider an application for an opt-in declaration having regard to the matters specified in subsections 25H(4) and either make, or refuse to make, a declaration. Subsection 25H(5) prevents the SRCC from granting an opt-in declaration that would be contrary to Australia’s international law obligations. Subsection 25H(6) provides that an opt-in declaration may be subject to conditions. An opt-in declaration must specify the duration of the declaration and cannot have retrospective effect.

166.           The legislative rules will be able to set out matters that the SRCC must consider when deciding whether to make an opt-in declaration.

167.           An opt-in declaration made in response to a renewal application comes into force immediately after the expiry of the previous opt-in declaration and remains in force for the period (not exceeding 1,095 days) specified in the declaration.

168.           The SRCC must make a decision within 28 days of either receiving the application or, where the SRCC has requested further information under new section 25F, receiving that information. If the SRCC does not make a decision within that time frame, it will be deemed to have made a declaration in accordance with the application.

169.           The SRCC is required to give a copy of an opt-in declaration to the owner and operator of the vessel to which the declaration relates and publish the declaration on its website. An opt-in declaration is not a legislative instrument.

170.           If the SRCC refuses to make a declaration, it must give written notice to the applicant.

 

New section 25J - Suspension or revocation of opt-in declaration

171.           This section empowers the SRCC to suspend or revoke an opt-in declaration either on its own initiative or on application by the owner or operator of the vessel, or the employer of the employees covered by the declaration.

172.           New subsections 25J(5), (6) and (7) set out requirements for an application to suspend an opt-in declaration. Subsection 25J(7) enables the application form to require the applicant to state they have taken reasonable steps to inform affected employees and their representatives of the application. Because the suspension or revocation of an opt-in declaration would affect the workers’ compensation entitlements and work health and safety protections of employees on the vessel, it is important employees are made aware of the application.

173.           The application form will not require the applicant to directly notify every affected employee—that would be excessively burdensome. The applicant must take reasonable steps to inform their employees, for example by posting notices around the affected vessel and/or including a notice about the application in a staff newsletter.

174.           In addition, before the SRCC can decide to suspend or revoke an opt-in declaration, it must post a notice of the proposed suspension or revocation on its website, inviting submissions. If a person makes a submission within seven days of the notice being posted, the SRCC must consider this submission. This ensures procedural fairness to affected parties.

175.           New subsection 25J(8) sets out the matters the SRCC must have regard to in deciding whether to suspend or revoke an opt-in declaration. Matters may be prescribed by the legislative rules.

176.           New subsection 25J(9) requires the SRCC to consult before deciding whether to suspend or revoke an opt-in declaration by publishing a notice on its website setting out the reasons for the proposed suspension or revocation and inviting persons to make submissions to the SRCC within 7 days after the notice is published. The SRCC must consider any submissions received within the 7 day period.

177.           New subsections 25J(10) and 25J(11) provide that the SRCC must notify all interested parties, including any person who made a submission under subsection (9), of a decision to suspend or revoke an opt-in declaration and publish the instrument of suspension or revocation on its website within 14 days of the suspension or revocation. If the owner, operator, employer or person who made a submission under subsection (9) objected to the suspension or revocation, the SRCC must give them a statement setting out the reasons for the suspension or revocation.

178.           An opt-in declaration has no effect while it is suspended (new section 25J(12)) and if an application is made for suspension or revocation of an opt-in declaration and the SRCC decides not to suspend or revoke the declaration, it must give written notice of the decision to the applicant (new section 25J(13)).

New subsection 25K - Review of decisions

179.           This section provides that applications may be made to the AAT for review of the following decisions relating to opt-in declarations:

·                      whether an opt-in declaration should be made;

·                      whether an opt-in declaration should be subject to conditions; and

·                      whether an opt-in declaration should be suspended or revoked.

New section 25L - Extended meaning of owner

180.           This section provides that the ‘owner’ of the vessel includes each of the persons who hold a part of the legal ownership of the vessel.

Division 4 - Exemption of employment

181.           This Division provides a mechanism whereby the employment of some or all employees on a particular vessel may be exempted from the application of the Bill and the levy arrangements.

182.           Exemptions will be made by the SRCC, either on its own initiative or on application by an owner or operator of a prescribed vessel, or by an employer of employees on a prescribed vessel.

New section 25M - Exemption of employment

183.           New section 25M provides that the SRCC may exempt, either generally or otherwise, the employment of some or all employees on a particular vessel from the application of the Seafarers Act and the levies established by the Levies Bill and Levies Collection Bill. The SRCC can do so either on its own initiative or on application by an owner, operator or employer.

184.           New subsection 25M(5) sets out the matters the SRCC must have regard to when making an exemption decision, including the matters (if any) prescribed by the legislative rules and such other matters (if any) as the SRCC considers relevant. Subsection 25M(6) provides that the SRCC must not grant an exemption that would be contrary to Australia’s obligations under an international agreement.

185.           New subsection 25M(7) provides that an exemption may be subject to conditions (if any) set out in the instrument of exemption.

186.           New subsections 25M(8), 25M(9), 25M(10) and 25M(11) provide that an exemption cannot have retrospective effect and remains in force for one year or a shorter period specified in the instrument of exemption.

187.           New subsection 25M(12) provides that if the SRCC makes an instrument of exemption in response to an application that is a renewal application, the instrument comes into force immediately after the expiry of the instrument that was in force when the application was made and remains in force for one year.

188.           New subsection 25JM13) provides that subsections (9), (10) and (12) have effect subject to new section 25Q which deals with the suspension or revocation of an exemption.

189.           New subsection 25M(14) requires the SRCC post a notice of the proposed exemption on its website, and invite submissions. If a person makes a submission within seven days of the notice being posted, the SRCC must consider this submission. This ensures procedural fairness to affected parties.

190.           New subsection 25M(15) requires the SRCC to make a decision within 28 days of either receiving the application or, where the SRCC has requested further information under subsection 25P(9), receiving that information. If the SRCC does not make a decision within that time frame, it will be deemed to have made a decision to refuse the application (triggering review rights).

191.           New subsections 25M(16) and 25M(17) require the SRCC to give a copy of the decision to the owner, operator or employer which the declaration relates and publish the decision on its website. If the owner, operator, employer or person who made a submission objecting to the exemption, the SRCC must give them a statement setting out the reasons for the exemption.

New section 25N - Effect of exemption

192.           This section provides that if an exemption is in force, the Seafarers Act and the Seafarers Safety and Compensation Levies Act 2016 and Seafarers Safety and Compensation Levies Collection Act 2016 do not apply to the extent specified in the exemption.

New section 25P - Application for exemption

193.           New section 25P sets out various requirements in relation to an application for an exemption and empowers the SRCC to seek further information in relation to an application for an exemption. A failure to comply with an information request may result in the SRCC refusing to consider, or take any action in relation to, the application.

194.           New subsection 25P(4) enables the application form for an exemption to require the applicant to state they have taken reasonable steps to inform affected employees and their representatives of the application. Because an exemption would affect the workers’ compensation entitlements and work health and safety protections of employees on the vessel, it is important employees are made aware of the application. Employees or their representatives can make submissions on the application to the SRCC (see subsection 25M(14)).

195.           The application form will not require the applicant to directly notify every affected employee—that would be excessively burdensome. The applicant must take reasonable steps to inform their employees, for example by posting notices around the affected vessel and/or including a notice about the application in a staff newsletter.

196.           This section also provides for renewal applications. A renewal application must be made 28 days before an existing exemption would expire. If a renewal application is made, the existing exemption continues in effect until a decision is made on the renewal application.

197.           This section also enables an applicant to withdraw an application for an exemption and provides that this does not prevent the applicant subsequently making a fresh application.

 

 

New section 25Q - Suspension or revocation of exemption

198.           This section empowers the SRCC to suspend or revoke an exemption either on its own initiative or on application by the owner or operator of the vessel, or an employer of any of the employees covered by the exemption.

199.           New subsection 25Q(5) sets out the matters the SRCC must have regard to in deciding whether to suspend or revoke an exemption.

200.           New subsection 25Q(6) requires the SRCC to consult with, and consider any submissions made by the owner and operator of the vessel and any relevant employer or employee organisation before making a final decision.

201.           The SRCC is required to notify all interested parties of a decision to suspend or revoke an exemption and publish the instrument of suspension or revocation on its website.

202.           New subsection 25Q(10) provides that where the SRCC refuses an application to grant a suspension or revocation it must give written notice of the decision to the applicant.

New section 25R - Review of decisions

203.           This section provides that applications may be made to the AAT for review of the following decisions relating to exemptions:

·          whether an application for an exemption should be granted;

·          whether an exemption should be subject to conditions; and

·          whether an exemption should be suspended or revoked.

Exemptions on the SRCC’s own motion are not reviewable.

New section 25S - Extended meaning of owner

204.           This section provides that the ‘owner’ of the vessel includes each of the persons who hold a part of the legal ownership of the vessel.

Item 85 - Paragraph 28(4)(a)

205.           This item clarifies that the paragraph applies where an employee has already paid the cost of the medical treatment.

Item 86 - Paragraph 28(4)(c)

206.           This item clarifies that the paragraph applies in any other case not covered by paragraph (4)(a) and (b).

Item 87 - Paragraph 29(5)(e)

207.           Paragraph 29(5)(e) provides that where a prescribed child is under 19 years of age, compensation is payable to the Seacare Authority for the benefit of the child. This item substitutes Comcare for the Seacare Authority consequential to the transfer of this function to Comcare and the abolition of the Seacare Authority.

Item 88 - Subsection 30(2)

208.           This item amends the maximum amount of compensation payable in respect of funeral expenses to align it with the value of the indexed amounts in the Seafarers Act and the SRC Act for the 2015-2016 financial years. This implements a recommendation in Appendix E to the Seacare Review.

Item 89 - Subsection 31(14)

209.           This item substitutes ‘vessel’ for ‘ship’ in the subsection.

Item 90 - Subsections 38(1) and (2)

210.           Currently, subsection 38(1) provides that weekly incapacity payments are not payable to an employee who has reached 65 years - the standard retirement age when the Act commenced in 1992. Current subsection 38(2) allows employees who suffer an injury at age 64 or more to receive incapacity payments for a maximum of 12 months from the date of injury, while they are incapacitated.

211.           The policy behind ceasing weekly incapacity payments at 65 years, or limiting payments to 12 months if the employee is aged 64 years or more at the date of injury, is that once the employee has reached 65 years they can move off weekly incapacity payments and on to other means of financial support, such as the age pension or superannuation.

212.           However, under the Social Security Act 1991, the age pension age for both men and women will rise incrementally from 65 years to 67 years between 1 July 2017 and 1 July 2023.

213.           These amendments are necessary to ensure that there is no gap for injured employees aged 65 years or more who would otherwise be unable to receive weekly incapacity payments due to section 38 of the Seafarers Act but would also be unable to access the age pension until he or she reached ‘pension age’ under the Social Security Act.

Item 91 - Subsection 39(7)

214.           This item repeals subsection 39(7) and inserts a new provision. Section 39 deals with the payment and method of calculation of compensation to employees who, as a result of an injury, suffer a permanent impairment.

215.           The amendment to subsection 39(7) implements a recommendation in Appendix E to the Seacare Review recommending that if the employee has a permanent impairment (other than a hearing loss) and the employer determines that the degree of permanent impairment is less than 10%, no amount of compensation for permanent impairment is payable to the employee.

216.           Subsection 39(7A) provides that if the employee has a permanent impairment that is a hearing loss and the binaural hearing loss suffered by the employee is less than 5%, no amount of compensation for permanent impairment is payable to the employee.

Item 92 - Subsection 40(4)

217.           This item makes an amendment to subsection 40(4) consequential to the amendments to subsection 39(7) made by item 91.

Item 93 - At the end of section 40

218.           This item provides that if a final assessment is made of an employee’s degree of permanent impairment constituted by a hearing loss, no further amounts of compensation are payable to the employee for a subsequent increase in the hearing loss, unless the subsequent increase is 5% or more binaural hearing loss.

Items 94 to 98 - Subsections 42(1)-(3A), (6) and (8)

219.           Item 94 transfers the function of preparing, varying or revoking the Approved Guide to Comcare consequential to the abolition of the Seacare Authority. The amendments to subclauses 42(3) and (3A) update the drafting to reflect the requirements of the Legislation Act 2003 .

Item 99 - Subsection 44(2) (definition of y [number of years] )

220.           Subsection 44(2) sets out the formula for determining a lump sum amount in the case where an employer makes a determination that liability to make further weekly incapacity payments to the employee be redeemed under subsection 44(2). This item amends the definition of ‘number of years’ in the formula in subsection 44(2) consequential to the amendments to the ‘age pension’ in section 38 made by item 90.

Item 100 - Subparagraphs 53(d)(i), (ii), (iii) and (iv)

221.           This item substitutes ‘vessel’ for ‘ship’ in the subparagraphs.

Item 101 - At the end of section 54

222.           New subsection 54(3) makes clear that where an employee has suffered an injury that results in the employee’s death, subclause (1) does not prevent a dependant of that employee bringing an action against the employer, or another employee, in respect of the death of the first-mentioned employee. New subsection (4) makes clear that this is the case even if the deceased employee had made an election under subsection 55(1) prior to his or her death. This clarifies that dependants of deceased employees have access to common law remedies against the employer of the deceased.

Item 102 - At the end of section 55

223.           New subsection 55(6) clarifies that an election by an employee under subsection 55(1) to institute an action or proceeding against the employer or another employee does not prevent the employee from doing any other thing that constitutes an action for non-economic loss, before or instead of formally instituting proceedings. ‘Action for non-economic loss’ is defined in section 3.

Item 103 - Section 56 (heading)

224.           This item substitutes a new heading.

Item 104 - Paragraph 56(1)(c)

Item 105 - Subsection 56(1)

Item 106 - Subsection 56(1)

Item 107 - Section 57 (heading)

Item 108 - Paragraph 57(1)(b)

Item 109 - Subsection 57(1)

Item 110 - Subsection 57(1)

Item 111 - Subsection 58(3)

Item 112 - Subsection 58(5)

Item 113 - Subsection 58(5)

225.           Items 104 to 110 and 112 to 113 implement a recommendation in Appendix E to the Seacare Review. The amendments substitute references to ‘makes a claim’ for ‘institutes proceedings’ to align with the terms used in the SRC Act. The term ‘makes a claim’ is broader than ‘institutes proceedings’ and allows an employee to negotiate common law matters where a claim for damages has been made, whether or not formal proceedings have been instituted by the employee.

226.           Item 111 also implements a recommendation in Appendix E to the Seacare Review. It provides that amounts received directly by the employee or paid for the benefit of the employee will be recoverable by the employer. For example, this allows employers to recover payments that may have been paid directly to medical providers.

Item 114 - Subsection 58(6)

227.           This item implements a recommendation in Appendix E to the Seacare Review. Subsection 58(4) provides that compensation is not payable under the Act if an employee recovers damages. Subsection (6) provides that subsection (4) does not apply if the damages were recovered as a result of proceedings or fresh proceedings instituted by the employer. The amendment aligns the subsection to section 48 of the SRC Act by substituting references to ‘claim’ with ‘proceedings’ in the provision. ‘Claim’ is a broader term and may encompass settlements resulting from negotiations, whether or not that claim or action progressed to the formal institution of proceedings.

115 - Section 59 (heading)

228.           This item repeals the heading and substitutes a new heading.

Item 116 - Paragraph 59(2)(b)

Item 117 - Subsection 59(2)

Item 118 - Subsection 59(2)

Item 119 - Paragraph 59(3)(b)

Item 120 - Paragraph 59(3)(c)

Item 121 - Subparagraph 59(3)(c)(i)

Item 122 - Subparagraph 59(3)(c)(i)

Item 123 - Subparagraph 59(3)(c)(ii)

Item 124 - Subsection 59(3)

Item 125 - Subsection 59(3)

229.           These items substitute references to ‘instituting proceedings, or taking over the conduct of proceedings’ with ‘making a claim or a fresh claim, or taking over the conduct of an existing claim’. This implements a recommendation in Appendix E to the Seacare Review. The amendments also substitute ‘makes a claim’ for ‘institutes proceedings’ to align with the terms used in the SRC Act. The term ‘makes a claim’ is broader than ‘institutes proceedings’ and allows an employee to consent to the employer taking over a claim under subsection 59(2) whether or not formal proceedings have been instituted by the employee.

Item 126- Subsections 59(4) to (9)

230.           This item makes amendments to subsections 59(4) to (9) to substitute references to ‘claim’ for ‘institutes proceedings’ in line with similar amendments made by items 104-125 above.

Item 127 - Subsection 59(11)

Item 128 - Subsection 59(11)

Item 129 - Paragraph 59(11)(a)

Item 130 - Paragraph 59(11)(a)

Item 131 - Paragraph 59(11)(b)

Item 132 - Paragraph 60(1)(d)

Item 133 - Paragraph 60(1)(d)

Item 134 - Subparagraphs 60(2)(b)(i) and (ii)

231.           These items substitute references to ‘claim’ for ‘proceedings’ in the relevant subsections and subparagraphs, consistent with amendments made by items 104-125 and 126.

Item 135 - Subsection 62(3)

232.           This item substitutes references to ‘vessel’ for ‘ship’ wherever occurring in the provision.

Item 136 - Paragraphs 63(2)(a) and (b)

233.           This item substitutes references to ‘Authority’ with ‘Comcare’ consequential to the abolition of the Seacare Authority.

Item 137 - Subsections 71(1) and (2)

234.           This item substitutes references to the ‘Fund’ with ‘Comcare’ wherever occurring in the provision, consequential to the abolition of the Fund.

Item 138 - Paragraph 72(1)(b)

Item 139 - Subsection 72(3)

Item 140 - Paragraph 73(2)(c)

Item 141 - Subsection 73(3)

Item 142 - Paragraph 73A(1)(b)

Item 143 - Subsection 73A(3)

Item 144 - Section 74 (heading)

Item 145 - Section 74

235.           These items substitute references to the ‘Authority’ with ‘Comcare’ consequential to the abolition of the Seacare Authority.

Item 146 - Section 75

236.           This item provides that sections 72 to 74 of the Seafarers Act, which deal with claims processing timeframes and review of decisions, do not apply to Comcare in its capacity as a default employer under subsection 4(3).

Item 147 - Subsection 76(1) (definition of extension of time decision )

237.           This item substitutes references to the ‘Authority’ with ‘Comcare’ consequential to the abolition of the Seacare Authority.

Item 148 - Subsections 78(4) and (5)

238.           Subsections 78(4) and (5) currently provide that if the employer receives a request, the employer must arrange for an industry panel or Comcare to assist the employer in reconsidering a determination under subsection (5). This item amends the section to remove references to industry panels as they are no longer used in the industry. The item also amends the requirement that an employer must arrange with Comcare for a Comcare officer to assist with the reconsideration if the employer receives a request to provide that an employer may arrange this. Comcare may charge the employer for an officer’s services—see section 145.

239.           Subsection 78(6) provides that after reconsidering its determination, the employer must make a decision affirming, revoking or varying the determination as the employer thinks fit.

240.           A decision made under section 78 is a ‘reviewable decision’, meaning that the claimant may make an application to the AAT for review of the decision under section 88. Section 87 provides that when a reviewable decision is made, the employer must give the claimant the terms and reasons for the decision, together with a statement of the rights to review in the AAT.

Item 149 - Subsection 78(7)

241.           This item repeals the definition of ‘industry panel’ as it is no longer relevant as references to the industry panel have been removed from section 78.

Item 150 - Paragraph 79(1)(b)

Item 151 - Subsection 79(4)

Item 152 - Section 80 (heading)

Item 153 - Section 80

242.           These items substitute references to the ‘Authority’ with ‘Comcare’ consequential to the abolition of the Seacare Authority.

Item 154 - Sections 81 and 82

243.           This item provides that sections 79 and 80, which deal with the time limit for reconsideration of a determination and employers seeking a review of Comcare’s decision, do not apply to Comcare in its capacity as a default employer under subsection 4(3).

Item 155 - Subsections 86(1) and (2)

Item 156 - Paragraph 89(4)(b)

244.           These items substitute references to the ‘Fund’ with ‘Comcare’ due to the abolition of the Fund.

Item 157 - Paragraph 89(4)(c)

245.           This item amends the subsection to provide that the AAT Act is to apply as if Comcare made the decision under review, not the Fund.

Item 158 - Subsection 91(2)

246.           This item clarifies that the AAT may tax costs under section 69A of the AAT Act.

Item 159 - Part 7 (heading)

247.           This item repeals the heading and substitutes a new heading which removes reference to ‘the Fund’.

Item 160 - Division 1 of Part 7 (heading)

248.           This item repeals the heading ‘Division 1’ consequential to the repeal of Divisions 2 and 3 of Part 7 (see item 175).

Item 160 - Subsection 93(1)

249.           This item omits reference to the Fund in the subsection.

Item 162 - Subparagraph 93(1)(b)(i)

Item 163 - Paragraph 93(1)(c)

250.           These items substitute references to the ‘Authority’ with ‘Comcare’ consequential to the abolition of the Seacare Authority.

Item 164 - At the end of section 93

251.           New subsection 93(7) provides that the compulsory insurance requirements in section 93 do not apply to Comcare in its capacity as a default employer under subsection 4(3). Part 2 of Schedule 2 adds subsections (5) and (6) to section 93 which relate to the implementation of requirements recently added to the MLC (see item 7).

Item 165 - Section 94 (heading)

Item 166 - Subsection 94(1)

Item 167 - Section 94A (heading)

Item 168 - Paragraph 94A(1)(c)

Item 169 - Section 95 (heading)

Item 170 - Section 95

252.           Items 165, 166, 168, 169 and 170 substitute references to the ‘Authority’ with ‘Comcare’ in the provisions consequential to the abolition of the Seacare Authority. Item 168 substitutes the ‘Comcare’ for the ‘Authority’ in paragraph 94A(1)(c). New section 94A is inserted by item 8 in Part 2 of Schedule 2 and places obligations on employers to notify the Seacare Authority of changes to, or cancellation or termination of, insurance or indemnity arrangements, as required by recent amendments to the MLC. The consequential amendment to this new section will require employers to provide notice to the Comcare instead.

172- At the end of section 95

253.           This item corrects an error in section 95 by clarifying the offence and the application of the Criminal Code .

 

 

Item 173 - Subsection 95B(7)

254.           This item repeals the definition of ‘operator’ and ‘vessel’ in new subsection 95B(7). Section 95B is inserted by item 9 and requires information about insurance or indemnity arrangements to be displayed on board a vessel, as required by recent amendments to the MLC. However item 49 inserts a new definition of ‘operator of a vessel’ in section 3 which applies throughout the Act and therefore the definition in section 95B(7) is not required.

Item 174 - After section 95B

255.           This section requires Comcare to insure the amount of its liability (as default employer) that exceeds the amount prescribed by the legislative rules for a single event which results in an injury to one or more employees.

256.           Subsection 95C(2) requires the Minister to consult with Comcare and any organisations that represent employers or employees that the Minister considers appropriate before prescribing an amount under subsection 95C(1). However, a failure to do so does not affect the validity of a legislative rule prescribing that amount.

Item 175 - Divisions 2 and 3 of Part 7

257.           This item repeals the remaining Divisions in Part 7 which deal with arrangements for the Fund and are no longer required.

Item 176 - Part 8 - Administration

258.           This item repeals Part 8 and replaces it with new provisions. Part 8 sets out the additional functions of the SRCC and AMSA under the Seafarers Act and re-establishes the Seafarers Rehabilitation and Compensation Special Account. It also provides Comcare and the SRCC with information gathering powers in relation to their roles under the Bill.

Section 103 - Simplified outline of this Part

259.           This section contains a simplified outline of Part 8. The simplified outline is included in the Bill to assist readers to understand the substantive provisions of Part 8, but is not intended to be comprehensive. Readers should rely on the substantive provisions of Part 8 of the Bill.

Section 104 - Additional functions of Commission

260.           This section sets out the additional functions of the SRCC under the Seafarers Act. These are broadly the same as the workers’ compensation functions previously performed by the Seacare Authority under section 104 of the Seafarers Act. The Seacare Authority’s occupational health and safety functions will now be performed by the SRCC under the WHS Act.

Section 105 - Additional function of the Australian Maritime Safety Authority

261.           This section provides that AMSA has the function of monitoring the requirement to display information about insurance and indemnity arrangements under new section 95B of the Bill.

 

Section 106 - Power to obtain information

262.           Subsection 106(1) enables the SRCC to require employers to provide documents or information relevant to the compilation of statistics for injury prevention purposes. This provision is not intended to abrogate the privilege against self-incrimination or the privilege against self-exposure.

263.           Subsections 106(2), (3) and (4) enable Comcare to require employers and employees to provide documents or information in relation to compensation claims made against an employer and Comcare’s power in section 4A to determine that a default event has occurred.

264.           Subsections 106(5) and (8) provide that an employer (other than Comcare in its capacity as a default employer) that fails, without reasonable excuse, to comply with a request for documents or information commits an offence and may be liable to a penalty of 20 penalty units. Subsection 106(5) provides that this offence is an offence of strict liability. A strict liability offence is considered justified for this provision because of the regulatory nature of the offence and the difficulty of proving a mental element for this type of offence. The use of strict liability is appropriately balanced by providing for a ‘reasonable excuse’ defence.

Section 107 - Seafarers Rehabilitation and Compensation Special Account

265.           This section re-establishes the account established by the Financial Management and Accountability (Establishment of Special Account) Determination 2002/06 made under subsection 20(1) of the Financial Management and Accountability Act 1997 as a statutory special account for the purposes of section 80 of the PGPA Act. The special account is to be called the Seafarers Rehabilitation and Compensation Special Account. The Secretary of the Department of Employment is responsible for the Special Account.

266.           The Seafarers Rehabilitation and Compensation Special Account is, in effect, a safety net fund, supported by a levy on scheme employers (by the Seafarers Safety and Compensation Levies Act 2016 and Seafarers Safety and Compensation Levies Collection Act 2016 ), which provides workers’ compensation payments to employees where there is no employer against whom a claim can be made, for example, because an employer becomes bankrupt or insolvent or is wound up or ceases to exist.

Section 108 - Credits to the Seafarers Rehabilitation and Compensation Special Account

267.           This section specifies the amounts that are required to be credited to the Seafarers Rehabilitation and Compensation Special Account. Generally, amounts of seafarers insurance levy and any related late payment penalties collected under the Seafarers Safety and Compensation Levies Collection Act 2016 as well as any amounts collected under the repealed Seafarers Rehabilitation and Compensation Levy Collection Act 1992 (see Schedule 1 and Part 3 of Schedule 3 to the Amendment Bill) are to be credited to the Seafarers Rehabilitation and Compensation Special Account. In addition, any amounts paid to the Commonwealth for any of the purposes of the Special Account (see section 109) may be credited to that Account.

 

 

Section 109 - Purposes of the Seafarers Rehabilitation and Compensation Special Account

268.           Section 109 specifies the purposes of the Seafarers Rehabilitation and Compensation Special Account, that is, the purposes for which monies standing to the credit of the special account may be expended. Section 80 of the PGPA Act provides the relevant appropriation authority.

269.           Generally, the Seafarers Rehabilitation and Compensation Special Account will fund any liabilities incurred by Comcare as a default employer under the Bill and the repealed Seafarers Act and any associated administrative expenses.

Item 177 - Section 129 (heading)

Item 178 - Subsections 129(1) and (2)

270.           These items substitute ‘Comcare’ for the ‘Fund’ in section 129. Section 129 will provide that where Comcare has become the employer of the employee as a result of a default event under subsection 4(3) and has paid an amount of money in respect of the employee, Comcare will be subrogated to all of the actual employer’s rights and remedies in relation to a policy of insurance or indemnity or membership of a protection and indemnity association or an employers’ mutual identity association, as the case may be.

Item 179 - Subsections 133(1) and (2)

Item 180 - Subsection 133(4)

Item 181 - Subsection 133(5)

Item 182 - Subsections 134(2) and (4)

Item 183 - Subsection 135(1)

Item 184 - Subsection 135(2)

271.           These items substitute ‘Comcare’ for the ‘Authority’ in the respective provisions. Section 133 provides arrangements for any money payable to a person under a legal disability to be held by Comcare for the benefit of the person. Section 134 deals with the manner in which compensation monies due to a person, or monies or investments held on behalf of a person, are to be applied if the person dies. Section 135 provides that an assignment of any compensation payable by an employer under the Seafarers Act is void as against Comcare if Comcare is the default employer under subsection 4(3).

Item 185 - Subsection 135(3)

272.           Subsection 135(3) provides that, except as provided by the Child Support (Registration and Collection) Act 1988 , the Social Security Act 1991 , and the Family Law Act 1975 or by regulations under the Family Law Act 1975 , compensation payable under the Seafarers Act is not subject to attachment. This item updates the references to other Commonwealth legislation and reflects current practice regarding the treatment of compensation payments for the purposes of assignment and attachment.

 

Item 186 - Subsection 141(1)

273.           This section enables Comcare to charge an employer for services provided by Comcare officers under section 78 for assisting with a reconsideration of a determination. The legislative rules can prescribe the amount of the fees (which must not amount to taxation) and provide for the recovery of fees.

Item 187 - Subsection 141(2)

Item 188 - Subsection 141(2)

274.           These items substitute ‘legislative rules’ for ‘regulations’ in the provision and make a consequential amendment to the subsection.

Item 189 - After section 141

275.           This item provides that a provision of this Act that deals with the variation or revocation of an instrument does not, by implication, prevent the application of subsection 33(3) of the Acts Interpretation Act 1901 to another instrument under this Act.

Work Health and Safety Act 2011

276.           Items 190 to 198 amend the WHS Act to extend that Act to the portion of the maritime industry that is covered by the Seacare scheme and to designate AMSA as the work health and safety regulator for the scheme .

277.           The OHS(MI) Act came into effect in 1994 and was based on the (repealed) Occupational Health and Safety Act 1991 which, at the time, was broadly similar to occupational health and safety laws across all states and territories.

278.           Since then the Commonwealth and all states and territories (other than Western Australia and Victoria) have adopted model work health and safety laws developed in accordance with the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. The OHS(MI) Act was not similarly amended or replaced, resulting in significant differences between the OHS(MI) Act and the principal Commonwealth work health and safety legislation.

279.           The Bill now provides for this alignment to occur. The Bill repeals the OHS(MI) Act (item 1 of Schedule 1) and amends the WHS Act (items 190 to 198) to extend its application to the maritime sector covered by the Seacare scheme to the exclusion of state or territory work health and safety laws. This gives effect to recommendation 5.1 of the Seacare Review. While the Seacare Review envisaged an updated stand-alone WHS Act for the maritime industry, such industry-specific work health and safety legislation covering the maritime sector cannot be justified. The duties and requirements in the WHS Act and Regulations are broad based and are capable of applying to a range of sectors, industries and workplaces. The maritime sector is not significantly different from other industries covered by general Commonwealth, state or territory work health and safety law. Additionally, extending the WHS Act to the maritime sector ensures that future changes to WHS laws are automatically applied to that sector. AMSA will continue to exercise work health and safety inspectorate functions in relation to the maritime industry. Industry specific Regulations and approved Codes of Practice may be made under the WHS Act.

280.           Transitional arrangements for the move from the OHS(MI) Act to the WHS Act are provided in Part 6 of Schedule 3.

Item 190 - Section 4 (definition of regulator )

281.           This item repeals and substitutes a new definition of ‘regulator’ in section 4 of the WHS Act to provide that AMSA will be the work health and safety regulator for the portion of the maritime sector covered by the new Seacare scheme subject to some minor exceptions:

·                      AMSA will not be required to approve incident notification forms under subsection 38(5) and work health and safety training courses under paragraph 72(1)(a) of the WHS Act, as these are approved by Comcare;

·                      Comcare will have sole responsibility on advising and making recommendations to the Minister and reporting on the operation and effectiveness of the WHS Act under paragraph 152(a) of the WHS Act.

282.           This preserves continuity with AMSA’s current role as the Inspectorate under the OHS(MI) Act.

Item 191- After subsection 12(8)

283.           This item inserts six new subsections 12(8A) to 12(8F) after subsection 12(8) to describe the ‘maritime sector’ to which the WHS Act will apply following the repeal of the OHS(MI) Act. 

284.           New subsection 12(8A) provides that the WHS Act applies to a vessel if the Seafarers Act applies to the employment of an employee on a vessel (or would apply assuming that an employee was employed on a vessel).

285.           The prescription that the WHS Act applies if the Seafarers Act would apply assuming that an employee was employed on the vessel is to ensure that the WHS Act will apply to vessel which does not have any ‘employees’ but which does have ‘workers’—a broader term used by the WHS Act.

286.           New subsection 12(8A) provides that the WHS Act will apply in relation to the vessel, any person conducting a business or undertaking on the vessel and workers carrying out work in any capacity on the vessel. Persons conducting a business or undertaking on the vessel may include the operator of the vessel, the owner of the vessel or an employer of an employee on the vessel.

287.           A positive duty is placed on officers of these entities to ensure the entity of which they are an officer complies with is duties and obligations under the WHS Act. The WHS Act adopts the definition of ‘officer of a corporation’ in section 9 of the Corporations Act 2001 meaning that the duty will apply to persons who make, or participate in making decisions that affect the whole or a substantial part of the business of the corporation. This requires an assessment of the whole of the corporation’s business, not just the business conducted on the vessel.

288.           New subsection 12(8B) provides that new subsection 12(8A) is subject to section 640 of the OPGGS Act which (as amended by item 10) excludes the application of certain Commonwealth maritime legislation, including the WHS Act, in the offshore area of a state or territory.

289.           New subsection 12(8C) provides that a corresponding WHS law, as defined in section 4 of the WHS Act, does not apply to a person to the extent that the Commonwealth WHS Act applies as a result of the addition of subsection (8A).

290.           New subsection 12(8D) provides that paragraph 61AA(b) of the Shipping Registration Act 1981 does not apply to exclude the application of the WHS Act in place of the OHS(MI) Act to vessels registered on the Australian International Shipping Register. Paragraph 61AA(b) of the Shipping Registration Act 1981 (as amended by item 13) provides that the new Seafarers Act does not apply in relation to a ship on the International Register. This provision is to be disregarded for the purposes of subsections 12(8A) and 12(8C) of the WHS Act. This allows for the continued application of the WHS safeguards in the maritime sector including ships on the International Register, in line with the existing position under the OHS(MI) Act.  

291.           New subsection 12(8E) further extends coverage of the WHS Act to prescribed vessels in the offshore petroleum industry when they are not being regulated as ‘facilities’ under the OPGGS Act. For the purpose of new subsections 12(8A) and 12(8C), the WHS Act is also intended to apply to offshore floating storage or production units and offshore industry mobile units that are self-propelled or under tow if it meets the other criteria for coverage as a vessel under the Seafarers Act.

292.           New subsection 12(8F) provides that the terms ‘employee’, ‘offshore floating storage or production unit’, ‘offshore industry mobile unit’ and ‘vessel’ have the same respective meanings as in the Seafarers Act .

Item 192 - Section 12A (heading)

Item 193 - Subsection 12A(1)

Item 194 - Subsection 12A(2)

293.           These items amend section 12A of the WHS Act as a consequence of the repeal of the OHS(MI) Act and the amendments in item 191 above which extend the WHS Act to that part of the maritime sector covered by the Seacare scheme.

Item 195 - After subsection 274(2)

294.           This item inserts new subsections 274(2A) and (2B) which provide that the consultation requirements in subsection 274(2) do not apply to a code of practice that relates only to the maritime industry and that instead, they must be developed in consultation with the SRCC.

295.           The consultation requirements in section 274 require broad consultation, including with State and Territory governments. This amendment will allow more focused consultation with maritime industry stakeholders, facilitated through the SRCC and the Seacare Advisory Group (see item 17).

Item 196 - At the end of Part 2 of Schedule 2

296.           This item inserts new sections at the end of Part 2 of Schedule 2 to the WHS Act, which require the SRCC’s annual report to include statistics and details about the administration of the WHS Act (including compliance activity) in the maritime sector covered by the Seacare scheme.

297.           AMSA is required to give the SRCC statistics and other information the SRCC requires to enable it to meet this reporting obligation.

Item 197 - Clause 3 of Schedule 2

Item 198 - At the end of clause 3 of Schedule 2

298.           These items amend clause 3 of Schedule 2 of the WHS Act to exclude from Comcare’s reporting requirements the operation and administration of the WHS Act in the maritime sector covered by the Seacare scheme under subsections 12(8A) to (8F). The SRCC will report on the operation and administration of the WHS Act in the maritime sector covered by the Seacare scheme.

Item 199 - At the end of Schedule 2

299.           This item inserts a new Part 5 at the end of Schedule 2 of the WHS Act, dealing with miscellaneous matters.

New clause 5 - Functions and powers of the Australian Maritime Safety Authority

300.           New clause 5 provides that AMSA may perform functions or exercise powers under the WHS Act (to the extent that it applies to the maritime sector covered by the Seacare scheme) outside Australia.

New clause 6 - Functions and powers of inspectors appointed by the Australian Maritime Safety Authority

301.           New clause 6 confines the functions and powers of AMSA inspectors appointed under the WHS Act to the maritime sector covered by the Seacare scheme.

New clause 7 - Australian Maritime Safety Authority and Comcare may share information

302.           This clause allows for the sharing of information between Comcare and AMSA to achieve the objects of the WHS Act and ensure consistent administration of the WHS Act by both regulators.

 

 

 

Part 4 - Comcare scheme

Division 1 - Catastrophic injury

Safety, Rehabilitation and Compensation Act 1988

303.           Part 4 amends the SRC Act to insert a definition of catastrophic injury and provide for the payment of weekly compensation for household and attendant care services obtained as a result of catastrophic injury.

304.           The National Injury Insurance Scheme (NIIS) is being developed as a federated model of separate, state-based no-fault schemes that provide lifetime care and support for people who have sustained a ‘catastrophic injury’ caused by four types of accidents: motor vehicle accidents, workplace accidents, medical accidents and general/other accidents. The NIIS builds on existing accident compensation schemes - for example, for workplace accidents - to complement the National Disability Insurance Scheme (NDIS).

305.           The amendments in this Part will align the workers’ compensation arrangements for the Comcare scheme with minimum benchmarks proposed for the NIIS by establishing a tiered approach to the payment of compensation for household and attendant care services, depending on whether the employee’s injury was ‘catastrophic’ or ‘non-catastrophic’.

306.           Compensation is payable for household and attendant care services under section 29 of the SRC Act. The new provision will remove the limits on compensation for ‘catastrophic injuries’.

Item 200 - Subsection 4(1)

307.           This item inserts a new definition for ‘catastrophic injury’ as having the meaning given by the legislative rules. The ‘legislative rules’ means the rules made under section 122A. It is intended that the definition will be the same as the NIIS benchmark.

Item 201 - Subsection 29 (heading)

308.           This item amends the heading to make clear that section 29 applies to household and attendant care services obtained as a result of non-catastrophic injury.

Item 202 - Subsections 29(1) and (3)

309.           This item amends subsections 29(1) and (3) to make clear that compensation in respect of an injury under section 29 applies as a result of an injury to an employee that is a non-catastrophic injury.

Item 203 - After section 29

310.           Section 29A provides for the payment of weekly compensation for household services and attendant care services obtained as a result of a catastrophic injury. The criteria for determining whether household services and attendant care services are reasonably required and the qualification requirements for provides of attendant care services remain the same as those under section 29 except that the amount of compensation payable is such amount as is reasonable in the circumstances. There is also no limit on the length of time household and attendant care services remain compensable.

311.           Section 29A should be read together with existing subsections 4(1) and 10A of the SRC Act.

Item 204 - Subsection 60(1) (definition of determination )

312.           This item amends section 60(1) of the SRC Act to insert new section 29A in the definition of ‘determination’ for the purposes of reconsideration of determinations and reviews of decisions by the AAT (see Part 6 of the SRC Act).

Item 205 - At the end of Part IX

313.           New section 122A enables the Minister to make legislative rules by legislative instrument prescribing matters required or permitted by the SRC Act to be prescribed by the rules or rules that are necessary or convenient to be prescribed for carrying out or giving effect to that Act.

314.           Subsection 122A(2) makes clear that the legislative rules may not create an offence or civil penalty, provide powers of arrest or detention or entry, search or seizure, impose a tax, set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Act or directly amend the text of the Act.

Division 2 - Pension Age

Safety, Rehabilitation and Compensation Act 1988

Item 206 - Subsection 4(1)

315.           This item provides that ‘pension age’ has the same meaning as subsection 23(5A), (5B), (5C) or (5D) of the Social Security Act 1991 .

316.           Defining ‘pension age’ by reference to the Social Security Act 1991 allows the definition to keep pace with any amendments to that Act.

317.           References in the Seafarers Act to age 65 years (what once used to be the maximum pension age) will be replaced by references to ‘pension age’.

Item 207 - Subsection 23(1)

Item 208 - Subsections 23(1A) and (1B)

318.           These items align the cut-off provisions in section 23 of the SRC Act with the qualifying age for the age pension as set out in the Social Security Act.

319.           Currently, subsection 23(1) of the SRC Act provides that weekly incapacity payments are not payable to an employee who has reached 65 years - the standard retirement age when the SRC Act commenced in 1988. Current subsections 23(1A) and (1B) allow for employees who suffer an injury when they are 63 years or more to receive incapacity payments for a maximum of 104 weeks (that is, 2 years) while they are incapacitated.

320.           The policy behind ceasing weekly incapacity payments at 65 years, or limiting payments to 104 weeks if the employee is aged 63 years or more at the date of injury, is that once the employee has reached 65 years they can move off weekly incapacity payments and on to other means of financial support, such as the age pension or superannuation.

321.           However, under the Social Security Act, the age pension age for both men and women will rise incrementally from 65 years to 67 years between 1 July 2017 and 1 July 2023.

322.           These amendments are necessary to ensure that there is no gap for injured employees aged 65 years or more who would otherwise be unable to receive weekly incapacity payments due to section 23 of the SRC Act but would also be unable to access the age pension until he or she reached ‘pension age’ under the Social Security Act.

Item 209 - Subsection 30(3) (paragraph (a) of the definition of number of days )

Item 210 - Subsection 30(3) (paragraph (b) of the definition of number of days )

323.           These items amend the definition of ‘number of days’ in subsection 30(3) of the SRC Act as a consequence of the amendments to section 23 of the Act that align the age cut-off provisions to the qualifying age for the age pension as set out in the Social Security Act.

Item 211 - Subsection 137(5) (definition of number of days )

324.           This item amends the definition of ‘number of days’ in subsection 137(5) of the SRC Act as a consequence of the amendments to section 23 of the SRC Act that align the age cut-off provisions to the qualifying age for the age pension as set out in the Social Security Act.

Part 5 - Work health and safety

Work Health and Safety Act 2011

325.           This Part contains technical amendments to section 12 of the WHS Act to clarify the application of that Act.  Making and enforcing laws about workplace health and safety are principally the responsibility of the States and Territories. Section 12 limits the application of the WHS Act to matters connected to the Commonwealth, public authorities and ‘non-Commonwealth Licensees’ (referred to as matters with a Commonwealth connection).  The amendments made by item 191 of the Bill will also extend the application of the WHS Act to matters connected to the maritime sector covered by the Seacare scheme.

326.           Duties of care under the WHS Act extend beyond the traditional employer/employee relationship so that all persons who conduct a business or undertaking owe a duty of care to all persons who may be put at risk from the conduct of the business or undertaking. Duties and obligations under the WHS Act apply to the Commonwealth, public authorities and non-Commonwealth Licensees (as defined in section 4 of the WHS Act).

327.           The WHS Act also places a positive duty on officers of these entities to exercise due diligence to ensure the entity of which they are an officer complies with its duties and obligations under the Act.

328.           Duties are also placed on workers and other persons at the workplace (e.g. visitors) to exercise reasonable care for their own health and safety and the safety of other persons. These duties apply to the extent that a worker is taken to be carrying out work in any capacity for a business or undertaking conducted by the Commonwealth, a public authority or non-Commonwealth Licensee, and persons at workplaces where such work is being carried out.

329.           Further duties apply to persons conducting businesses or undertakings involved in specific activities that may have a significant effect on work health and safety at workplaces (sections 20-26 of the WHS Act). These activities include the management or control of workplaces, fixtures, fittings and plant, as well as the design, manufacture, importation, supply or installation of plant, substances and structures used for work. Collectively these duty holders are sometimes referred to as ‘upstream duty holders’ because of the potential for their acts and omissions to give rise to risks that flow through to employers, workers or members of the public who encounter their plant, substances, buildings or structures in workplaces downstream.

330.           Technical amendments made by this Part clarify that the WHS Act applies to these ‘upstream duty holders’ where the activity gives rise to potential risk to workers or workplaces to which the WHS Act applies. The WHS Act extends beyond the Commonwealth, public authorities and non-Commonwealth licensees to impose duties of care on all businesses and undertakings that have the capacity to influence safety of workers and workplaces prescribed by section 12.

331.           The WHS Act will continue to apply to the exclusion of state and territory laws in relation to the Commonwealth, public authorities and non-Commonwealth licensees that have opted in to national work health and safety and workers compensation coverage under the Comcare scheme. However, persons conducting a business or undertaking who design, manufacture, import or supply plant, substances or structures to (or in) multiple jurisdictions—that is more than one state or territory, or workplaces to which Commonwealth and state or territory laws apply, could be subject to more than one set of WHS laws. Duty holders will not be able to be prosecuted more than once for an act or omission (see subsections 12(10)-(13)).

Illustrative example

Workers at the Department of Utopia are required to poke fingers and other objects into the shredder to clear paper fragments because of a lack of appropriate guarding preventing large volumes of paper being fed into the equipment. The equipment was purchased from Supplies ‘R Us and is widely used by workplaces.

Supplies ‘R Us has a duty under section 25 of the WHS Act to ensure so far as is reasonably practicable that the equipment is without risks to persons. The equipment is sold in stores in New South Wales and Queensland, so corresponding work health and safety laws also apply.

Notices may be issued under the WHS Act to Supplies ‘R Us to fit appropriate guarding to the shredders ensuring the issue is addressed in relation to workplaces more broadly, and is not limited to the Department of Utopia.

Item 212 - Paragraph 12(1)(a) and (b)

332.           This item repeals and replaces paragraphs 12(1)(a) and (b) of the WHS Act. In substance, these amendments remove references to officers of the Commonwealth and a public authority. These references are unnecessary because an officer of the Commonwealth or a public authority will have a duty under the WHS Act by virtue of being an officer of an entity which has duties under the WHS Act.

Item 213 - Paragraph 12(1)(c)

Item 214 - Paragraph 12(1)(c)

Item 215 - Paragraph 12(1)(d)

Item 216 - Paragraph 12(1)(d)

333.           These items amend paragraphs 12(1)(c) and (d) of the WHS Act to replace references to ‘person’ with ‘worker’ as this is the term used in the duties.

Item 217 - Paragraph 12(1)(e)

Item 218 - Paragraph 12(1)(e)

Item 219 - Paragraph 12(1)(f)

Item 220 - Paragraph 12(1)(f)

334.           These items amend paragraphs 12(1)(e) and (f) of the WHS Act to replace the references to ‘place’ with ‘workplace’ as this is the term used in the duties.

Item 221 - Subsection 12(3)

335.           This item amends subsection 12(3) of the WHS Act to make it clear that State and Territory work health and safety laws are only excluded where there is a direct application to the Commonwealth, a public authority or a non-Commonwealth Licensee. It is intended that State and Territory work health and safety laws would continue to apply to non-Commonwealth business and undertakings and other persons to the extent that they would otherwise operate in a situation involving a person conducting a business or undertaking, worker or workplace with a Commonwealth connection. For example, if a non-Commonwealth worker visits a Commonwealth workplace as part of the workers’ non-Commonwealth work, the Commonwealth has a duty to the worker under subsection 19(2) of the WHS Act and the worker has a duty under the applicable State or Territory work health and safety law to take reasonable care for his or her own safety.

Item 222 - Paragraphs 12(4)(b)

Item 223 - Paragraph 12(4)(b)

336.           These items amend paragraph 12(4)(b) of the WHS Act to replace references to ‘person’ with ‘worker’ as this is the term used in the duties.

Item 224 - Paragraph 12(4)(c)

Item 225 - Paragraph 12(4)(c)

337.           These items amend paragraph 12(4)(c) of the WHS Act to replace the references to ‘place’ with ‘workplace’ as this is the term used in the duties.

Item 226 - Subsections 12(5) and (9)

338.           This item amends subsections 12(5) and (9) of the WHS Act to make it clear that State WHS laws are only excluded where there is a direct application to the Commonwealth, a public authority or a non-Commonwealth Licensee. It is intended that State and Territory work health and safety laws would continue to apply to non-Commonwealth business and undertakings and other persons to the extent that they would otherwise operate in a situation involving a person conducting a business or undertaking, worker or workplace with a Commonwealth connection. For example, if a non-Commonwealth worker visits a Commonwealth workplace as part of the workers’ non-Commonwealth work, the Commonwealth has a duty to the worker under subsection 19(2) of the WHS Act and the worker has a duty under the applicable State or Territory work health and safety law to take reasonable care for his or her own safety.

Item 227 - Subsection 74(1)

Item 228 - subsection 74(2)

339.           These items repeal subsection 74(2) and remove the number reference to (1). Subsection 74(2) requires a PCBU to provide a copy of an up-to-date list of HSR’s and their deputies to Comcare. Repealing 74(2) removes the burden on employers of providing this list to Comcare but does not alter the primary aspect of section 74(1) which requires this list to be displayed in a prominent place in the workplace. This amendment does not reduce health and safety overall as inspectors can view lists when inspecting workplaces and may request a copy under section 155 of the WHS Act. 

Item 229 - Section 93

340.           A HSR may issue a provisional improvement notice (PIN) under section 90 if he or she reasonably believes that a person is contravening the WHS Act. A PIN is a written notice requiring the contravention to be remedied or a likely contravention to be prevented.

341.           Section 93 provides that a PIN may include directions which outline the measures to be taken to remedy or prevent the contravention. Although directions may specify a particular method to remedy or prevent a contravention, there may be other methods available which would achieve the same outcome. While the language in section 93, such as ‘directions’ and ‘the measures to be taken’, suggests that compliance with a direction is compulsory, compliance with a direction is intended to be optional.

342.           These items repeal and replace section 93 to clarify that a PIN may include recommendations (rather than directions) about measures that may be taken by a person to prevent or remedy a contravention.

343.           A recommendation under new section 93 is intended to provide practical guidance to assist a person to prevent or remedy a contravention. It may recommend a measure, or a choice of measures, that could be taken by a person to comply with the WHS Act. It may also refer to an approved code of practice made under the WHS Act.

344.           A failure to comply with a recommendation in a PIN is not intended to be an offence under section 99.

Item 230 - At the end of section 247

345.           The amendment clarifies that neither a Judge nor a Head of Mission is, in that capacity, an officer for the purposes of the WHS Act.

 



SCHEDULE 3 - APPLICATION AND TRANSITIONAL PROVISIONS

346.           This schedule contains transitional provisions arising from the repeals and amendments effected by Schedules 1 and 2.

Part 1 - Introduction

Item 1

347.           This item contains definitions for the purposes of Schedule 3. It defines the terms ‘transitional rules’ and ‘transition time’.

348.           ‘Transitional rules’ are the rules made under item 64 of Schedule 3.

349.           The ‘transition time’ will be the day on which the main provisions of the new Seafarers Act commence, that is, on 1 July 2017.

Part 2 - Catastrophic injuries to seafarers

Item 2 - Application - catastrophic injury

350.           This item makes clear that the amendments to sections 43 and the insertion of new section 43A of the Seafarers Act made by Part 1 of Schedule 2 apply to compensation payable in respect of a week beginning after the commencement of the first legislative rules made for the purposes of the definition of ‘catastrophic injury’ in section 3.

Part 3 - Implementation of the amendments to the Maritime Labour Convention relating to insurance obligations of employers of seafarers

Item 3 - Application - compulsory insurance

351.           This item makes clear that amended sections 93(5) and (6) (which deal with compulsory insurance obligations) only apply in relation to an application made by an employer after the commencement of this item (that is, the 28 th day after this Bill receives the Royal Assent and 1 January 2017, whichever is later).

Part 4 - Seacare scheme

Item 4 - Application - coverage of employees etc

352.           This item provides that despite the amendments to the Seafarers Act in relation to an employee’s eligibility and compensation entitlements made by certain items in Schedule 2, the Seafarers Act as it was in operation prior to the transition time continues to apply in relation to injuries suffered pre-transition time as if those amendments had not been made (the ‘preserved Seafarers Act’). The preserved Seafarers Act will also continue to apply in relation to injuries suffered at or after the transition time if an employee suffers an injury while he or she was travelling between his or her place of work or place of residence and any other place for the purposes of obtaining medical treatment or a medical certificate in relation to an initial injury that was suffered pre-transition time.

353.           The preserved Seafarers Act will operate as it was in force in relation to eligibility and compensation payments immediately before the transition time and is intended to apply the general principle that injuries are regulated by the law that was in force at the time of the injury.

354.           The exceptions to this are the amendments made by Part 1 of Schedule 2 which provide for uncapped compensation for household and attendant care services for an employee who suffers a catastrophic injury and the amendment in Part 3 of Schedule 2 which ensures that persons receiving compensation payments can continue to receive those payments until ‘pension age’, as defined. These amendments have separate commencement provisions set out in Items 2 and 9 of this Schedule, respectively.

Item 5 - Transitional - exemption of employment

355.           Section 20A of the Seafarers Act provides that the Seacare Authority may exempt the employment of certain employees. If an exemption is in force in respect of a ship, the Seafarers Act does not apply in relation to those employees to whom the exemption applies, so long as any conditions of the exemption are complied with (subsection 20A(3)). Item 5 provides for the transition of exemption instruments in force under subsection 20A(1) of the Seafarers Act as ‘deemed exemption instruments’ under new subsection 25M(1) of the Seafarers Act in the same terms as the old exemption instrument after the commencement of item 5 on 1 July 2017.

356.           Paragraphs 5(2)(b) and (c) provide that a reference in the deemed exemption instrument to the Levy Act and Levy Collection Act applies as if it were a reference to the Seafarers Safety and Compensation Levy Act 2016 and Seafarers Safety and Compensation Levies Collection Act 2016 respectively.

357.           Subclause 5(3) provides that new subsection 25M(14) (requiring the SRCC to consult before making an instrument of exemption) and paragraph 25M(16) (requiring the SRCC to give a copy of the instrument of exemption to the owner or operator of a vessel, the employer of the relevant employees and each person who made a submission under subsection 25M(14)) do not apply to the deemed exemption instrument.

Item 6 - Application - funeral expenses

358.           This item makes clear that the amendment of subsection 30(2) made by item 88 applies in relation to a death that occurs after the commencement of this item.

Item 7 - Transitional - indexation

359.           This item provides that section 23 applies to an amount specified in subsection 30(2) as if the reference in the definition of ‘relevant year’ in subsection 23(1) to 1 July 1992 were a reference to 1 July 2018. This will ensure that indexation on the amount specified in subsection 30(2) occurs at the end of the first financial year following the commencement of the provision on 1 July 2017.

Item 8 - Application - compensation for injuries resulting in incapacity.

360.           This item provides that the amendment of section 31 of the Seafarers Act (which provides for compensation for injuries resulting in incapacity) made by the Bill only applies to payments of compensation after the transition time.

 

Item 9 - Application - pension age

361.           This item provides that the amendments to section 38 of the Seafarers Act (related to the definition of ‘pension age’) made by the Bill only apply to payments of compensation after the transition time.   The item also allows the number of weeks of compensation payments to be increased beyond 52 weeks to ensure that an employee who has already reached 64 years and who was injured before the transition time continues to receive payments to bridge any gap after the 53 weeks are exhausted before the relevant pension age (subject to ongoing eligibility determined in accordance with the Seafarers Act)

Item 10 - Application - superannuation scheme

362.           This item ensures that the amendment made by item 59 of Schedule 2 of the Bill (which substitutes a new definition for ‘superannuation scheme’) only apply to payments of compensation after the transition time.

Item 11 - Application - reconsideration of decisions

363.           This item ensures that the amendments to section 78 of the Seafarers Act (which deals with an employer arranging with Comcare for a Comcare officer to assist the employer in reconsidering a determination under subsection 78(5)) made by the Bill only apply in relation to a request made after the transition time.

Item 12 - Application - costs of proceedings before the Administrative Appeals Tribunal

364.           This item ensures that the amendment of section 91 of the Seafarers Act (which provides a power for the AAT to tax costs under section 69A of the AAT Act) made by the Bill only apply in relation to proceedings instituted after the transition time.

Part 5 - Winding-up of old levy scheme

Item 13 - Application—repeal of old Levy Act

Item 14 - Application—repeal of old Levy Collection Act

365.           These items provide that despite the repeals of the Seafarers Rehabilitation and Compensation Levy Act 1992 and the Seafarers Rehabilitation and Compensation Levy Collection Act 1992 those Acts continue to apply in relation to matters before the transition time.

Part 6 - Transition from old occupational health and safety scheme

366.           This Part preserves the operation of the OHS(MI) Act in relation to breaches of that Act that occurred before the transition time.

Division 1 - Introduction

Item 15 - Definitions

367.           This item contains definitions of terms used in Part 6 of Schedule 3 of the Bill. For the purpose of the Part the following terms are defined: Australian Maritime Safety Authority, notifiable incident, Occupational Health and Safety (Maritime Industry) Act 1993 , residual operation of the Occupational Health and Safety (Maritime Industry) Act 1993 , plant, structure, substance, supply and Work Health and Safety Act 2011 .

Division 2 - Application of old occupational health and safety scheme

Item 16 - Application of old occupational health and safety scheme to certain breaches etc.

368.           This item preserves the operation of the repealed OHS(MI) Act in relation to breaches (and alleged breaches) of that Act that occurred before the transition time. However, the repealed OHS(MI) Act will not apply to breaches that continue after the transition time as these will be subject to the provisions of the WHS Act.

Division 3 - Application of duties imposed under the Work Health and Safety Act 2011

369.           This Division provides for the phasing in of the ‘upstream’ duties imposed by the WHS Act where an activity may have started prior to the extension of the WHS Act to the maritime sector and the duty did not previously apply to the activity.

370.           Because many of the duty holders under these provisions will operate in relation to workplaces in multiple work health and safety jurisdictions (for example, a business might manufacture plant used in workplaces throughout multiple states and on vessels under the Seacare scheme), it is likely that many duty holders will already have been complying with either the Commonwealth WHS Act or a state or territory WHS Act.

371.           For this reason, the transitional provisions set out in items 17 to 21 for these duties will not apply to a person who was already subject to that duty, either under the Commonwealth WHS Act or a state or territory WHS Act.

Item 17 - Duties of designers

372.           This item provides that designer duties under section 22 of the WHS Act (in so far as that Act applies to the maritime sector)—other than the duties imposed on the designer under paragraph 22(4)(b) and subsection 22(5)—do not apply in relation to any plant, substance or structure if the design work commenced before the transition time and is completed within two years of the transition time.

373.           Paragraph 22(4)(b) and subsection 22(5) of the WHS Act require a designer to provide information to specified persons about the results of any calculations, analysis, testing or examination that may be relevant to determining whether any plant, substance or structure is designed to be without work health and safety risks.

Item 18 - Duties of manufacturers

374.           This item provides that manufacturer duties under section 23 of the WHS Act (in so far as that Act applies to the maritime sector)—other than the duties imposed on the manufacturer under paragraph 23(4)(b) and subsection 23(5)—do not apply in relation to any plant, substance or structure if the manufacturer commenced work before the transition time and is completed within one year of the transition time. The duties imposed on a manufacturer under sections 15 and 16 of the repealed OHS(MI) Act will apply to and in relation to any plant or substance if the manufacturer started any process associated with the manufacture of the plant or substance before the transition time. The repealed OHS(MI) Act will apply to any breach of these duties.

375.           Paragraph 23(4)(b) and subsection 23(5) of the WHS Act require a manufacturer to provide information to specified persons about the results of any calculations, analysis, testing or examination that may be relevant to determining whether any plant, substance or structure is manufactured to be without work health and safety risks.

Item 19 - Duties of importers

376.           This item provides that importer duties under section 24 of the WHS Act (in so far as that Act applies to the maritime sector)—other than the duties imposed on the importer under paragraph 24(4)(b) and subsection 24(5)—do not apply in relation to any plant, substance or structure if the importer commenced the importation before the transition time and the importation within one year of the transition time. The duties imposed on an importer who is taken to be a manufacturer under sections 15 and 16 of the repealed OHS(MI) Act will apply to and in relation to any plant or substance if the importer started any steps constituting the importation of the plant or substance before the transition time. The repealed OHS(MI) Act will apply to any breach of these duties.

377.           Paragraph 24(4)(b) and subsection 24(5) of the WHS Act require an importer to provide information to specified persons about the results of any calculations, analysis, testing or examination that may be relevant to determining whether any plant, substance or structure that is imported is without work health and safety risks.

Item 20 - Duties of suppliers

378.           This item provides that supplier duties under section 25 of the WHS Act (in so far as that Act applies to the maritime sector)—other than the duties imposed on the supplier under paragraph 25(4)(b) and subsection 25(5)—do not apply in relation to any plant, substance or structure if the supplier commenced any process associated with the supply before the transition time and the supply is completed within one year of the transition time. The duties imposed on a supplier (or a person taken to be a supplier) under section 19 of the repealed OHS(MI) Act will apply to and in relation to any plant or substance if the supplier started any process associated with the supply of the plant or substance before the transition time. The repealed OHS(MI) Act will apply to any breach of these duties.

379.           Paragraph 25(4)(b) and subsection 25(5) of the WHS Act require a supplier to provide information to specified persons about the results of any calculations, analysis, testing or examination that may be relevant to determining whether any plant, substance or structure that is supplied is without work health and safety risks.

Item 21 - Duties of persons who install, construct or commission plant or structures

380.           This item provides that the installer duties under section 26 of the WHS Act (in so far as that Act applies to the maritime sector) do not apply in relation to any plant, substance or structure if the installer commenced any process associated with the installation, construction or commissioning of the plant or structure before the transition time and the installation, construction or commissioning within two years of the transition time. The duties imposed on an installer under section 22 of the repealed OHS(MI) Act will apply to and in relation to any plant or substance if the installer started any process associated with the installation, construction or commissioning of the plant or substance before the transition time. The repealed OHS(MI) Act will apply to any breach of these duties.

Division 4 - Notifiable incidents etc.

Item 22 - Notifiable incidents etc.

381.           This item provides that if a person conducting a business or undertaking becomes aware of a notifiable incident after the transition time, the WHS Act (in so far as that Act applies to the maritime sector) applies in relation to that notifiable incident even if the incident occurred before the transition time.

Item 23 - Accidents and dangerous occurrences

382.           This item preserves the operation of section 108 of the OHS(MI) Act (and associated regulations) in relation to any records required to be maintained about an accident or dangerous occurrence before the transition time.

Division 5 - Work groups, health and safety representatives and committees

Item 24 - Designated work groups

383.           This item provides that a designated work group established under Division 1 of Part 3 of the repealed OHS(MI) Act and in operation immediately before the transition time is taken to have been determined as a work group under the WHS Act.

Item 25 - Health and safety representatives etc.

384.           This item provides that health and safety representatives and deputy health and safety representatives selected under the repealed OHS(MI) Act and who hold office immediately before the transition time are taken to hold the corresponding office under the WHS Act for a term of three years beginning on the day of their selection under the repealed OHS(MI) Act.

Item 26 - Health and safety committees

385.           This item provides that a health and safety committee established under section 73 of the repealed OHS(MI) Act and in operation immediately before the transition time is taken to be a health and safety committee under the WHS Act. Sub-item 26(2) sets out the constitution of a transitional health and safety committee and sub-item 26(4) clarifies that the constitution of a transitional committee can be changed in accordance with section 76 of the WHS Act.

Item 27 - Processes to establish work groups etc.

386.           This item enables a process or proceeding to establish or vary a designated work group, select a health and safety representative or deputy health and safety representative or to establish a health and safety committee that was commenced under the repealed OHS(MI) Act before the transition time to be completed under that Act provided that this is done within three months after the transition time.

Item 28 - Training

387.           This item provides that a person who has completed a course of training accredited under section 47 of the repealed OHS(MI) Act is taken to have completed any training required under subsection 85(6) or 90(4) of the WHS Act (in so far as that Act applies to the maritime sector) for a period of 12 months only.

Item 29 - Provisional improvement notices

388.           This item preserves the operation of  the repealed OHS(MI) Act in relation to a provisional improvement notice in effect under section 58 of that Act at the transition time. Sub-item 29(2) clarifies that a disputed transitional improvement notice is not reviewable under the WHS Act.

Item 30 - Disqualification

389.           This item ensures that a person who, immediately before the transition time, is disqualified under section 72 of the repealed OHS(MI) Act from being a health and safety representative continues to be disqualified under the WHS Act for the balance of the period of the initial disqualification.

390.           Sub-item 30(3) provides that a person’s conduct as a health and safety representative under the repealed OHS(MI) Act is relevant to the determination of an application for disqualification under section 65 of the WHS Act.

Division 6 - AMSA and inspectors

Item 31 - Appointment

391.           This item preserves the appointment of AMSA staff members as inspectors under the repealed OHS(MI) Act as inspectors under the WHS Act and preserves the operation of identity cards issued for the purposes of the repealed OHS(MI) Act.

Item 32 - Use of WHS functions and powers to enforce the Occupational Health and Safety (Maritime Industry) Act 1993

392.           This item provides that, after the transition time, an AMSA appointed inspector can perform WHS Act functions and exercise WHS Act powers in relation to matters arising in connection with the residual operation of the repealed OHS(MI) Act and that the WHS Act applies in relation to the performance or exercise of such a function or power. For example, an inspector may be able to enter premises for the purpose of investigating a matter after commencement of the WHS Act in relation to actions or failures that occurred before the transition time, whether or not the investigation commenced prior to the transition time. Action taken or information acquired through the exercise of powers and functions under the WHS Act may be used for the purposes of enforcing relevant provisions of the OHS(MI) Act.

Item 33 - WHS inspectors may exercise functions and powers under the Occupational Health and Safety (Maritime Industry) Act 1993

393.           This item provides that an AMSA appointed inspector may exercise the functions and powers of an investigator under the repealed OHS(MI) Act in connection with the residual operation of that Act.

Item 34 - AMSA may use powers of investigation under the Work Health and Safety Act 2011 for the Occupational Health and Safety (Maritime Industry) Act 1993

394.           This item provides that AMSA may, after the transition time, exercise the information gathering powers under section 155 of the WHS Act in relation to anything arising in connection with the residual operation of the repealed OHS(MI) Act and that the WHS Act applies in relation to the exercise of that power. Section 155 sets out the powers of the regulator to obtain information from a person in relation to a possible contravention of the WHS Act.

395.           Information in relation to actions and failures that occurred before the transition time can be used when investigating matters after the transition time whether or not the investigation commenced before the transition time. Action taken or information acquired through the exercise of functions under the WHS Act may be used for the purposes of the OHS(MI) Act. This would, for example, permit information acquired on AMSA’s request under section 155 to be used as evidence in a prosecution for breach of the OHS(MI) Act.

Division 7 - Enforcement measures

Item 35 - Prohibition notices

396.           This item preserves the operation of the repealed OHS(MI) Act in relation to a prohibition notice which is in effect under section 93 of that Act immediately before the transition time.

Item 36 - Improvement notices

397.           This item preserves the operation of the repealed OHS(MI) Act in relation to an improvement notice which is in effect under section 98 of that Act immediately before the transition time.

Division 8 - Other matters

Item 37 - Exemptions

398.           This item preserves the operation of certain exemptions under the OHS(MI) Act under the WHS Act.

399.           Sub-item 37(1) enables the transitional rules to identify those exemptions under the OHS(MI) Act which are to be preserved under the WHS Act.

400.           Sub-item 37(2) enables the transitional rules to modify the application of the WHS Act in relation to preserved exemptions.

Item 38 - Codes of practice

401.           This item preserves the operation of certain codes of practice made under section 109 the OHS(MI) Act as if they were approved under section 274 of the WHS Act for a period of 2 years.

402.           Sub-item 38(1) enables the transitional rules to identify those codes of practice which are to be preserved under the WHS Act.

403.           Sub-item 38(4) clarifies that a preserved code of practice may be varied or revoked under section 274 of the WHS Act.

Item 39 - Offshore petroleum and greenhouse gas storage

404.           This item provides that the definition of Commonwealth maritime legislation in subsection 640(3) of the OPGGS Act is taken to include a reference to the repealed OHS(MI) Act and any subordinate legislation to that Act.

405.           That provision will be amended to replace the reference to the OHS(MI) Act with a reference to the WHS Act so far as that Act applies because of subsection 12(8A) of that Act.

Part 7 - Abolition of the Seafarers Safety, Rehabilitation and Compensation Authority

Item 40 - Designated provision

406.           The effect of Part 7 as a whole is to transfer the existing powers and obligations of the Seacare Authority under the Seafarers Act to the SRCC or Comcare after the abolition of the Seacare Authority.

407.           Item 40 provides that each of the provisions of the Seafarers Act listed in the item is a ‘designated provision’ for the purposes of Part 7 of Schedule 3. The designated provisions relate to certain things that were done by, or in relation to, the Seacare Authority under the Seafarers Act before the transition time. 

Item 41 - Transitional—certain acts of the Seafarers Safety, Rehabilitation and Compensation Authority to be attributed to the Safety, Rehabilitation and Compensation Commission etc.

408.           This item provides that anything done by, or in relation to, the Seacare Authority before the transition time otherwise than under a designated provision or in connection with the Seacare Authority’s capacity as an employer under repealed subsection 4(2) or (3) of the Act  has effect after the transition time as if it had been done by, or in relation to, the SRCC.

409.           The provisions which this item does not apply to relate to functions which will be transferred to Comcare rather than the SRCC.

Item 42 - Transitional—certain acts of the Seafarers Safety, Rehabilitation and Compensation Authority to be attributed to Comcare etc.

410.           This item provides that anything done by, or in relation to, the Seacare Authority before the transition time under a designated provision will have effect after the transition time as if it had been done by, or in relation to, Comcare.

Item 43 - Substitution of the Safety, Rehabilitation and Compensation Commission as a party to certain pending proceedings

411.           This item provide that in any proceedings to which the Seacare Authority was a party in any court or tribunal immediately before the transition time, the SRCC is substituted for the Seacare Authority, from the transition time, as a party to the proceedings.

412.           This will not apply in relation to the functions of the Seacare Authority which are being transferred to Comcare, for those proceedings, Comcare will be substituted instead (see item 44).

413.           This item ensures that any existing litigation is not affected by the abolition of the Seacare Authority.

Item 44 - Substitution of Comcare as a party to certain pending proceedings

414.           This item provides that in any proceedings to which the Seacare Authority was a party in any court or tribunal immediately before the transition time, and which relate to the functions being transferred to Comcare, Comcare is substituted for the Seacare Authority, from the transition time, as a party to the proceedings.

415.           This item ensures that any existing litigation is not affected by the abolition of the Seacare Authority.

Item 45 - Transitional—transfer of records to the Safety, Rehabilitation and Compensation Commission

Item 46 - Transitional—transfer of records to Comcare

416.           These items provides for any records or documents that were in possession of the Seacare Authority immediately before the transition time to be transferred to the SRCC or Comcare (depending on which function they relate to) from the transition time.

Item 47 - Transitional—transfer of Ombudsman investigations to the Safet y , Rehabilitation and Compensation Commission

Item 48 - Transitional—transfer of Ombudsman investigations to Comcare

417.           These items ensure that matters before the Ombudsman relating to actions taken by the Seacare Authority that have not been finalised at the transition time are either transferred to the SRCC or to Comcare (depending on which function they relate to).

Item 49 - References in certain instruments to the Seafarers Safety, Rehabilitation and Compensation Authority

418.           This item provides for references to the Seacare Authority in certain instruments to be taken as references to the SRCC or Comcare (depending on which function the instrument relate to) at the transition time to ensure that those instruments continue to operate as intended after the transition.

Item 50 - Transitional—Transfer of money or investments to Comcare

419.           This item provides that any money or investments held by the Seacare Authority for the benefit of a person are to be transferred to Comcare, to be held for the benefit of that person.

Item 51 - Transitional - information gathering

420.           This item provides for information gathering notices issued by the Seacare Authority before the transition time to continue to have effect after the transition time as if the notice had been issued by Comcare.

Item 52 - Final annual report of the Seafarers Safety, Rehabilitation and Compensation Authority

Item 53 - Annual report—occupational health and safety

421.           This item provides that the final annual reports of the Seacare Authority, as required by the PGPA Act and OHS(MI) Act, will be prepared by the Chairperson of the SRCC.

Part 8 - Coverage of employees by the Seacare scheme

422.           This Part will enable operators and owners of vessels which are covered by the Seacare scheme at the time of Royal Assent to seek a ‘transitional declaration’, so that they will remain covered by the scheme due to new section 25D of the Seafarers Act. This will ensure that any vessels which are currently covered by the Seacare scheme that would not meet the new definition of ‘prescribed vessel’ can continue to be covered by the scheme if they choose to be. Vessels which do meet the definition of ‘prescribed vessel’ will be able to opt-in under the provisions in Part 1A of the Seafarers Act.

423.           Vessel operators and owners will have from Royal Assent until six months after the transition time to seek a transitional declaration. Declarations will be granted by the SRCC. Declarations will remain in force for three years at a time, and can be renewed by application to the SRCC.

Item 54 - Definitions

424.           This item provides definitions for Part 6. These definitions are consistent with those in the Seafarers Act.

Item 55 - Application for transitional declaration

425.           This item enables the owner or operator of a vessel to apply to the SRCC for a transitional declaration in relation to the vessel.

426.           An application (other than to renew an existing transitional declaration) can only be made in the period between when the Bill receives Royal Assent and 6 months after the transition time.

427.           Sub-items 55(2), (3) and (4) set out various requirements in relation to an application.

428.           Sub-item 55(4) enables the application form to require the applicant to state they have taken reasonable steps to inform affected employees and their representatives of the application. Because an application for a transitional declaration could affect the workers’ compensation entitlements and work health and safety protections of employees on the vessel, it is important these employees are made aware of the application.

429.           The application form will not require the applicant to directly notify every affected employee—this would be excessively burdensome. The applicant must take reasonable steps to inform their employees, for example by posting notices around the affected vessel and/or including a notice about the application in a staff newsletter. If the transitional declaration is granted, it will also be published on the SRCC’s website (see item 58).

430.           Subitems 55(6), (7) and (8) provide for renewal applications. Renewal applications must be made more than 28 days before the current transitional declaration would expire (unless the SRCC allow a late application to be made). If a renewal application is made, the current transitional declaration remains in force until a decision is made in relation to the renewal application (unless it is separately suspended or revoked under item 59).

Item 56 - Further information

431.           This item empowers the SRCC to seek further information in relation to an application for a transitional declaration. If the applicant does not provide the request information, the SRCC may refuse to process the application until the information is provided.

Item 57 - Withdrawal of application

432.           This item provides that an applicant may withdraw an application for a transitional declaration and that this does not prevent the applicant from making a fresh application (subject to the time limits in item 55). If an application is withdrawn, the SRCC must refund any fee paid in relation to the application.

Item 58 - Transitional declaration

433.           This item provides that the SRCC must consider an application for a transitional declaration and then either make or refuse to make a transitional declaration.

434.           Sub-items 58(4) and (5) set out eligibility criteria for a transitional declaration. The SRCC can only grant a transitional declaration if it is satisfied that during the 28 day period leading up to Royal Assent:

·          The Seafarers Act applied to employees on the vessel; and

·          An employer of employees on the vessel was maintaining a policy of insurance, or membership of a protection and indemnity association or an employers’ mutual indemnity association (as required by section 93 of the Seafarers Act).

435.           These eligibility criteria will ensure that transitional declarations are limited to vessels which were both under the Seacare scheme and complying with the Seafarers Act at the time of Royal Assent. The SRCC will be able to look at whether the levy was being paid in relation to the vessel to assist it in determining whether the Seafarers Act applied to the vessel.

436.           Sub-items 58(7), (8), (9) and (10) deal with the duration of transitional declarations. Transitional declarations will remain in force for three years.

437.           Sub-item 58(11) provides that the SRCC must make a decision within 28 days of either receiving the application or, where the SRCC has requested further information under section 56, receiving that information. If the SRCC does not make a decision within that time frame, it will be deemed to have made a declaration in accordance with the application.

438.           Sub-item 58(12) provides that the SRCC is required to give a copy of a transitional declaration to the owner and operator of the vessel to which the declaration relates and publish the declaration on its website.

439.           Sub-item 58(13) provides that if the SRCC refuses to make a declaration, it must give written notice to the applicant (a refusal is reviewable by the AAT, see item 60 of this Schedule).

Item 59 - Suspension or revocation of transitional declaration

440.           This item empowers the SRCC to suspend or revoke a transitional declaration either on its own initiative or on application by the owner or operator of the vessel, or the employer of the employees covered by the declaration. Sub-item (5) provides that an application must be in writing and in a form approved, in writing, by the SRCC.

441.           Sub-items 59(6) and (7) set out the requirements that may be provided for in the approved form. Sub-item (7) enables the application form to require the applicant to state they have taken reasonable steps to inform affected employees and their representatives of the application. Because the suspension or revocation of a transitional declaration would affect the workers’ compensation entitlements and work health and safety protections of employees on the vessel, it is important employees are made aware of the application.

442.           The application form will not require the applicant to directly notify every affected employee—that would be excessively burdensome. The applicant must take reasonable steps to inform their employees, for example by posting notices around the affected vessel and/or including a notice about the application in a staff newsletter.

443.           Sub-item 59(8) sets out the matters the SRCC must have regard to in deciding whether to suspend or revoke a transitional declaration and includes the matters (if any) prescribed by the transitional rules and such other matters (if any) as the SRCC considers relevant.

444.           In addition, sub-item 59(9) provides that before the SRCC can decide to suspend or revoke a transitional declaration, it must post a notice of the proposed suspension or revocation on its website, inviting submissions. If a person makes a submission within seven days of the notice being posted, the SRCC must consider this submission. This ensures procedural fairness to affected parties.

445.           The SRCC must notify the owner and operator, and any person who made a submission, of a decision to suspend or revoke a transitional declaration and publish the instrument of suspension or revocation on its website.

446.           Sub-item 59(12) provides that a transitional declaration has no effect while it is suspended and sub-item 59(13) provides that if the SRCC decides not to suspend or revoke a transitional declaration upon an application made under paragraph (4)(b), the SRCC must give written notice of the decision to the applicant (a refusal is reviewable by the AAT, see item 60).

Item 60 - Review of decisions

447.           This item provides that applications may be made to the AAT for review of the following decisions relating to transitional declarations:

·          whether a transitional declaration should be made; and

·          whether a transitional declaration should be suspended or revoked.

Part 9 - Comcare scheme

Division 1 - Catastrophic injury

Item 61 - Application - catastrophic injury

448.           This item provides that the amendments of sections 29 and 29A of the SRC Act made by the Bill only apply in respect of a week beginning after the commencement of the first legislative rules made for the purposes of the definition of ‘catastrophic injury’ in subsection 4(1) of that Act.

Division 2 - Pension age

Item 62 - Application - pension age

449.           This item provides that the amendments to section 23 of the SRC Act made by the Bill only apply in respect of a week beginning after the commencement of this item. The item also provides that the amendment of section 137 of the SRC Act made by the Bill applies in relation to a determination made by the relevant authority after the commencement of this item.   The item also allows the number of weeks of compensation payments to be increased beyond 104 weeks to ensure that an employee who has already reached 63 years and who was injured before 1 July 2017 continues to receive payments to bridge any gap after the 104 weeks are exhausted but before the relevant pension age (subject to ongoing eligibility determined in accordance with the SRC Act)

Part 10 - Miscellaneous

Division 1- Constitutional safety net

Item 63 - Constitutional safety net

450.           This item ensures that the Bill complies with the requirements of paragraph 51(xxxi) of the Constitution by requiring the Commonwealth to pay reasonable compensation if the operation of the Bill would result in the acquisition of property.

Division 2 - Transitional rules

Item 64 - Transitional rules

451.           This item enables the Minister to make transitional rules and specifies matters that may be the subject of transitional rules. Transitional rules will be a legislative instrument for the purposes of the Legislation Act 2003 .

452.           Sub-item 64(3) expressly limits the power to make transitional rules. The transitional rules may not:

·          create an offence or civil penalty;

·          provide powers or arrest, detention, entry, search or seizure;

·          impose a tax;

·          set an amount to be appropriated from the Consolidated Revenue Fund; or

·          directly amend the text of the Act that will be created by the Bill.

 

 

 

 




[1] Victorian OHS laws are substantially aligned with the model WHS laws. Western Australia is in the process of substantially aligning their OHS laws with the model WHS laws.

[2] Decision Regulation Impact Statement for a Model Occupational Health and Safety Act, Access Economics, December 2009.

[3] ACIL Tasman (2004) Occupational Health and Safety: Economic Analysis, Report for WorkCover

[4] Industry Commission (2005), Work Health and Safety, An Inquiry into Occupational Health and Safety Pg 22

[5] Prepared by Allen Consulting Group for WorkSafe Victoria (2007). Regulatory Impact Statement: proposed Occupational Health and Safety Regulations 2007 and proposed Equipment (Public Safety) Regulations 2007.

[6] Safe Work Australia (2012), The Cost of Work-Related Injury and Illness for Australian Employers, Workers and the Community

[7] National Workers’ Compensation and Occupation Health and Safety Frameworks, Productivity Commission, 24 June 2004, p.327

[8]               Decision Regulation Impact Statement for a Model Occupational Health and Safety Act, Access Economics, December 2009.

[9] The model WHS laws have been adopted by the Commonwealth and every state and territory except Victoria and Western Australia. Western Australia is considering adopting the model WHS laws, and released a draft bill for public comment in October 2014. While Victoria has not adopted the model WHS laws, its Occupational Health and Safety Act 2004 has strong similarities to the model laws.

[10] A comprehensive summary of the differences between the OHS(MI) Act and the model WHS Act is contained in Appendix G of the Stewart-Crompton Review of the Seacare Scheme.

[11] Human Rights Committee, General Comment No. 32, Article 14: The right to equality before courts and tribunals and to a fair trial, U.N. Doc CCPR/C/GC/32 (23 August 2007) [30].

[12] National Review into Model Occupational Health and Safety Laws, Second Report to the Workplace Relations Ministers’ Council , January 2009, [29.60]-]29.67].

[13] Human Rights Committee, General Comment No. 16 - Article 17 (The right to respect of privacy, family, home and correspondence, and protection of honour and reputation), U.N. Doc HRI/GEN/1/Rev.9 (Vol. 1) (28 September 1988) [10].

[14] 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].

[15] Commonwealth, Parliamentary Debates , House of Representatives, 27 April 1988, 2192-3 (the Hon, Brian Howe MP, Minister for Social Services).

[16] See, eg, Treloar v Australian Telecommunications Commission [1990] FCA 511; Peters and Comcare [2004] AATA 435 (3 March 2004).

[17] Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44 th Parliament , 11 August 2015 [1.309].

[18] Data supplied to the Department of Employment by the Seacare Authority.

[19] European Court of Human Rights and European Union Agency for Fundamental Rights, 2010. Handbook on European non-discrimination law.  Available at: http://fra.europa.eu/sites/default/files/fra_uploads/1510-FRA-CASE-LAW-HANDBOOK_EN.pdf; European Union non-discrimination directives: Racial Equality Directive Article 2(2)(b); Employment Equality Directive Article 2(2)(b); Gender Goods and Services Directive Article 2(b); Gender Equality Directive (Recast) Article 2(1)(b).

[20] UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 16 (Rev.1), The Committee on Economic, Social and Cultural Rights , May 1996, No. 16 (Rev.1), available at: http://www.refworld.org/docid/4794773cd.html [accessed 22 May 2014].