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Seafarers Safety, Rehabilitation and Compensation Authority Reports 1998-99


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Seafarers Safety, Rehabilitation and Compensation Authority

Annual Report 1998-1999

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Annual Report 1998-1999

© Commonwealth of Australia 1999

ISSN 1325-1074

This work is copyright. Apart from use as permitted under the Copyright Act 1968, no part may be reproduced by any process without permission of the Chairperson, Seafarers Safety, Rehabilitation and Compensation Authority. Requests and inquiries concerning reproduction and rights should be addressed to the Chairperson, Seafarers Safety, Rehabilitation and Compensation Authority, GPO Box 9879, CANBERRA ACT 2601.

Contact Officer

For further information concerning this publication, please contact:

Sandra Henderson-Kelly Seafarers Safety, Rehabilitation and Compensation Authority GPO Box 9879 CANBERRA ACT 2601 Phone: (02)61217120 Facsimile: (02)61217907 Email: seacare@dewrsb.gov.au

Acknowledgement

Cover picture The Iron Yandi provided by BHP Transport Pty Ltd.

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The Hon Peter Reith, MP Minister for Employment, Workplace Relations and Small Business Parliament House CANBERRA ACT 2601

Dear Minister

I am pleased to present the Annual Report on the activities of the Seafarers Safety, Rehabilitation and Compensation Authority for the year ended 30 June 1999.

The report is provided in accordance with section 125A(1) the Seafarers Rehabilitation and Compensation Act 1992 and subsection 34C(2) of the Acts Interpretation Act 1901.

Yours sincerely

Geoffrey Gronow Chairperson | ^ October 1999

Seafarers Safety, Rehabilitation and Compensation Authority GRO Box 9879 CANBERRA ACT 2601

Phone: (02)6121 7120 Fax: (02) 6121 7907

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ABLE OF CONTENTS

Letter of Transmission to M in iste r..............................................................iii

C hairperson’s R e p o r t......................................................................................... 1

C hapter 1: Overview of the Seafarers Safety, Rehabilitation and Compensation Authority............................................................................ 3

1.1 Functions of the Authority................................................................................3

1.2 Membership of the Authority in 1998-99 ...................................................... 4

1.3 Recent Membership Changes.......................................................................... 6

1.4 Equal Employment Opportunity in Appointments..........................................6

C hapter 2: Major Activities in 1998-99...............................................................7

2.1 Priority Issues............................................................................................. 7

2.2 Rehabilitation and Compensation in 1998-99............................................... 9

2.3 Occupational Health and Safety in 1998-99 ............................................. 11

2.4 Other Business..............................................................................................13

Chapter 3: Amendments to Legislation............................................................. 17

Chapter 4: Performance Report........................................................................ 19

4 .1 Rehabilitation and Compensation Statistics................................................... 19

4.2 Occupational Health and Safety Statistics.................................................... 22

A ppendices

Appendix 1 List of enactments administered by the Minister for Employment, Workplace Relations and Small Business through the Seafarers Safety Rehabilitation and Compensation Authority.......................................23

Appendix 2 Publications.................................................................................... 24

Appendix 3 Significant Administrative Appeals Tribunal Decisions and Court Judgments.....................................................................25

Appendix 4 Workers’ compensation data covering seafarers covered by the Seacare scheme and those with equivalent entitlements..................29

Index of Government reporting requirem ents...........................................31

Glossary of acronym s....................................................................................... 32

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udgments of the Administrative Appeals Tribunal and the Federal Court of Australia. Further work may need to be undertaken in 1999-2000 to clarify the coverage of the two Acts and to advise the industry appropriately.

Work also commenced on developing ways to improve the accessibility of information about the scheme, including through the development of a web site and new contact arrangements.

In 1998-99 the Authority dealt with continuing matters such as considering applications for exemption from the Act and for extensions of time in which employers must consider or reconsider workers’ compensation claims, advising industry participants about the scheme, and obtaining advice on the

adequacy of insurance and indemnity arrangements in the industry.

In relation to administrative arrangements, the Secretariat for the Authority transferred to the Safety and Compensation Policy Branch of the Department of Employment, Workplace Relations and Small Business. The Maritime Transport Group, which previously had responsibility for the function, returned to the Department of Transport and Regional Services.

Overall, the year was a challenging and successful one for the Seacare Authority and has opened the way for further improvements to the operation of the scheme. I look forward to working with every member of the Authority to improve its administration.

Finally, I would like to acknowledge the valuable contribution made by all members of the Seacare Authority throughout the financial year. I would especially like to highlight the contributions of the former Chairperson, Ms Dianne Hawgood, who provided substantial direction during her term of office and facilitated an easy transition to my position in the Authority. I would also like to thank the Australian Maritime Industry Compensation Agency for its assistance in collecting and processing statistical information for the Authority.

GEOFFREY GRONOW, ED

CHAIRPERSON

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Overview of the Seafarers Safety, Rehabilitation and Compensation Authority 1.1 Functions of the Authority The Seafarers Safety, Rehabilitation and Compensation

Authority (known as the Seacare Authority) is a statutory body established under the Seafarers R ehabilitation and Compensation Act 1992 (the Seafarers R&C Act). The Authority performs a series of functions under that Act as well as functions conferred on it by the Occupational Health and Safety (Maritime Industry) Act 1993 (the OHS(MI) Act).

The functions of the Authority are to:

• monitor the operation of the Seafarers R&C Act; • promote high standards of claims management and effective rehabilitation procedures by employers; • cooperate with other bodies or persons with the aim of

reducing the incidence of injuries to employees; • publish material relating to the above functions; • formulate policies and strategies relating to employees’ OHS; • accredit OHS training courses for the purposes of section 47

of the OHS(MI) Act; • ensure compliance with the obligations imposed by the OHS(MI) Act and Regulations; • advise operators, employees or contractors on OHS matters,

either on being asked or of the Authority’s own initiative; • liaise with other bodies concerned with OHS; • collect, interpret and report information relating to OHS: • advise the Minister for Employment, Workplace Relations

and Small Business on: - matters relating to the Authority’s functions and powers and other matters relating to the compensation and rehabilitation of employees; - the most effective means of implementing the OHS(Ml)

Act; - making regulations under the OHS(MI) Act; - approving codes of practice relating to OHS in the maritime industry; and

- any such other functions as are conferred on the Authority by the Seafarers R&C Act and the OHS(MI) Act or any other Act.

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1.2 Membership of the Authority in 1998-99 The Seacare Authority has seven members, six of whom are appointed by the Minister. The Minister appoints a Chairperson, Deputy Chairperson, two employer representatives and two employee representatives. The Chief Executive Officer of the Australian Maritime Safety Authority (AMSA) is an ex officio appointee to the Authority. The position of Deputy Chairperson was vacant at 30 June 1999.

Dianne Hawgood Chairperson to 31 August 1999 Ms Hawgood is the Group Manager of the Regional Delivery Group in the

Commonwealth Department of Employment, Workplace Relations and Small Business.

Clive Davidson, Member

Mr Davidson is the Chief Executive Officer of the Australian Maritime Safety Authority.

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Warwick Norman, Member Captain Norman is the Integrated Logistics Advisor at BHP Transport. He represents the interests of employers in the trading fleet sector.

Martin Byrne, Member Mr Byrne is the Assistant Federal Secretary of the Australian Institute of Marine and Power Engineers. He represents seafarers’ interests.

Padraig Crumlin, Member Mr Crumlin is the Deputy National Secretary o f the Maritime Union of Australia. He represents seafarers’ interests.

David Smith, Member

Mr Smith is the Insurance Manager at P&O Maritime Sen’ices. He represents the interests of employers in the offshore petroleum and gas sector.

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.3 Recent Membership Changes Ms Dianne Hawgood resigned from her position as Chairperson of the Authority, with effect from 31 August 1999.

Mr Geoffrey Gronow was appointed as the new Chairperson of the Authority on 1 September 1999. Mr Gronow is a partner in the law firm Middletons Moore & Bevins. He is a solicitor and barrister in the High Court of Australia and the Supreme Court of Victoria.

Ms Sheila Butler was appointed as the new Deputy Chairperson of the Authority on 1 September 1999. Ms Butler is the Assistant Secretary of the Safety and Compensation Policy Branch of the Department of Employment, Workplace Relations and Small Business.

1.4 Equal Employment Opportunity in Appointments The former Chairperson, Ms Dianne Hawgood, and the new Deputy Chairperson, Ms Sheila Butler, are both from an Equal Employment Opportunity target group. They were the first and second women appointees to the Authority respectively.

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HAPTER 2

Major Activities in 1998-99 2.1 Priority Issues

Workplace Relations Ministers’ National Comparative Monitoring Project

At its meeting of 2 September 1998, the Authority agreed to participate in the national comparative performance monitoring (CPM) project, conducted under the auspices of the Workplace Relations Ministers’ Council. The CPM project in Australia and New Zealand covers all OHS and workers’ compensation

authorities in Australia. Workplace Relations Ministers initiated the project to compare and consider the merits of different arrangements, as well as aid the development of effective and cohesive approaches to w orkplace safety and injury

management.

More specifically, the goals of the CPM project are to:

• provide information on outcomes in the workplace which will allow more informed policy-making and program development by governments; • show how resources are being used and the outcomes achieved

with them; • highlight significant variations in performance between health and safety and workers’ compensation jurisdictions over time; • help identify factors that contribute to differing levels of

performance; and • improve awareness and understanding of OHS achievements.

To facilitate the Authority’s participation in the CPM project, the Department of Employment, Workplace Relations and Small Business (DEWRSB) commissioned an actuarial firm, William M Mercer Pty Ltd, to evaluate the suitability of the Seacare data for inclusion in the project. The consultant found that there were difficulties with the data quality and

recommended the following measures:

• redesign of the Claim for Rehabilitation!Compensation form; • improved data collection and recording methods in relation to ship crewing levels; • improvements in the claim update process; and • improvements in the database maintained by the Australian

Maritime Industry Compensation Agency (AMIGA).

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he Authority approved a new Claim fo r Rehabilitation! Compensation form, which adopted measures suggested by the consultant, and had regard to revisions to the National Data Set being introduced by the National Occupational Health and Safety Commission. Additional items concerning rehabilitation were included in the form to assist consideration of the industry’s rehabilitation performance. The new form has been used in the industry from 1 July 1999.

The Authority agreed that it should act upon the remaining matters and, where responsibilities lay elsewhere, that the appropriate agency be strongly encouraged to adopt the recommended reforms. In March 1999, the Chairperson of the Authority wrote to AMIGA—the agency responsible for collecting the workers’ compensation and rehabilitation data for

the scheme— and urged it to implement the recommended measures at the earliest opportunity. The measures included improvements to the claims update process and the database m aintained in respect of w orkers’ com pensation and

rehabilitation.

Coverage of Legislation

The Authority considered the application of the Seafarers R&C and the OHS(MI) Acts in the light of Administrative Appeals Tribunal (AAT) and Federal Court decisions that clarified coverage in the areas of the offshore oil and gas industry and the types of vessels covered, particularly within a Territory.

In the case of Gabriella Jean Piscioneri (on behalf of Kimberley and Emma Collins) and Tidewater Port Jackson Marine (AAT No 12487), the AAT found that the deceased seafarer in question was not covered by the Seafarers R&C Act, but appeared to have access to equivalent entitlements by virtue of the relevant

industrial award. The Tribunal determined that the award could not confer jurisdiction on the AAT and dismissed the matter.

The Piscioneri decision raised issues about the workers’ compensation coverage of seafarers engaged in the offshore oil and gas industry who derive entitlements from industrial awards and agreements. In the light of recent changes to federal industrial legislation, the Australian Government Solicitor (AGS) was consulted on the workers’ compensation coverage of these employees. AGS advised that employers in the offshore oil and gas sector should confirm their workers’ compensation coverage, particularly where they have struck new federal certified agreements as these may operate subject to State and/ or Territory workers’ compensation laws.

The Authority noted that DEWRSB would progress the matter with State and Territory workers’ compensation authorities, and

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write to operators in the sector, maritime unions and relevant industry bodies. Two options that operators might consider to address the coverage issue would be to obtain a declaration from AMSA under the Navigation Act or take steps to comply

with State and/or Territory workers’ compensation laws.

In the case of Tiwi Barge Services Pty Ltd v Julie Ann Stark [1997] FCA 874, the Federal Court determined that the application section in the Seafarers R&C Act— and by im plication the OHS(MI) A ct— has primacy over most provisions of the Navigation Act. This means, in particular, that ‘prescribed ships’ operating within a Territory, and possibly some other categories of vessels, would appear to be subject to these Acts. For the OHS(MI) Act, ‘prescribed units’ operating within a Territory would also appear to be subject to that Act.

DEWRSB and the A uthority have the m atter under consideration.

Improving Communication with the Authority

In 1998-99 the Authority commenced a process of improving access to information about the Seacare scheme. The Authority agreed to new arrangem ents for a web site (h ttp://

www.seacare.gov.au) and the creation of a dedicated voicemail service and email address to handle inquiries. The Authority also agreed that work should begin on developing information on aspects of the schem e in leaflet form for public

dissemination.

2.2 Rehabilitation and Compensation in 1998-99

Coverage of the Seafarers Rehabilitation and Compensation Act

The Seafarers R&C Act applies to seafarers employed on ‘prescribed ships’ (that is, ships covered by Part II of the Navigation Act) that are engaged in trade or commerce: between Australia and places outside Australia; between two

places outside Australia; among the States; within a Territory; between a State and a Territory; or between two Territories.

In addition, the Act applies to seafarers employed on ‘prescribed ships’ that are offshore industry vessels subject to a declaration under subsection 8A(2) of the Navigation Act or trading ships subject to a declaration under subsection 8AA(2) of that Act.

Insurance and Indemnity Arrangements

Section 93 of the Seafarers R&C Act requires each employer to have a policy of insurance or indemnity in respect of liabilities under that Act. Employers of seafarers on ships under the jurisdiction of the Act have continued to inform the Authority

that policies of insurance or indemnity are in place. In addition,

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number of em ployers subject to industrial awards or agreements that provide workers’ compensation benefits equivalent to the Seacare scheme also advised that they had policies of insurance or indemnity in place.

Determination of Exemptions from the Application of the Seafarers Rehabilitation and Compensation Act

Since 1997, the Authority has been empowered to exempt the employment on a particular ship of all employees, of a particular group or particular groups of employees, or of a particular employee or particular employees from the application of the Seafarers R&C Act (section 20A). On 4 December 1998, the Authority reviewed its policy on granting exemptions and,

without limiting its power in any way, agreed to adopt the following guidelines:

(a) in respect of individual exemptions, each case will be considered on it merits; (b) as a general principle, exemptions may only be granted in cases in which a State or Territory compensation scheme

applies or other suitable workers’ compensation cover has been obtained; (c) exemptions should only be granted to those arrangements that could not be considered to constitute any form of regular

trading pattern. For example, the Authority would consider two applications for exemption in respect of a ship within a short time frame if there were evidence to suggest that there were unlikely to be further requests for some time

after the two requested exemptions; and (d) blanket exemptions for periods of time will not generally be granted, even those of short duration. An exception to this might include cases in which a ship is operating

permanently overseas with locally engaged crew.

As noted in (b) above, the Authority is prepared to grant exemptions only when there is suitable workers’ compensation cover in place, including cover under a State or Territory

scheme. In 1998-99 most State and Territory schemes provided for extra-territorial operation, although the A uthority understood that the Queensland Workers Compensation Act 1990 was not capable of applying in cases in which ships were on interstate or overseas voyages. The Queensland Act was amended with effect from 1 July 1999 to provide extra-territorial operation for operators undertaking such voyages.

In 1998-99 the A uthority received 12 applications for exemption from the Seafarers R&C Act and granted eight.

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applications were refused on the ground that the seafarers concerned would not have access to suitable workers' compensation cover because of the operation of Queensland Workers Compensation Act 1990. The other two applications

were completed in July 1999.

Determination of Extensions of Time

Under sections 73, 73A and 79 of the Act, employers are required to complete consideration or reconsideration of claims for com pensation w ithin specified time lim its. If the

consideration or reconsideration cannot be completed within the specified time, an employer may seek an extension of time from the Authority.

In 1998-99 the Authority received eight applications for extensions of time to consider or reconsider a claim for compensation. Five were granted. The remaining three were refused on the grounds that the statutory time limit had expired (two applications) or that the Authority did not have jurisdiction (one application).

Rehabilitation and Return to Work

The Seafarers R&C Act contains measures intended to ensure that injured seafarers are rehabilitated effectively, leading to an early and successful return to work. This is intended to reduce time lost through w ork-related injuries and associated

compensation costs.

The Authority believes that there is scope to improve the industry’s rehabilitation performance. In part, this involves the collection of reliable and informative data. This process was commenced with the introduction of the new Claim fo r Rehabilitation/ Compensation form, which includes questions

about job characteristics and return to work details. Employees are now asked to identify unsuccessful return to work experiences associated with their workers’ compensation claims. Employers are asked about the employees’ rehabilitation

status and whether they have made arrangements to assess the claimants’ capacity to return to work where injuries involve or are likely to involve incapacity for work of 28 days’ duration or more.

2.3 Occupational Health and Safety in 1998-99

Coverage of the Occupational Health and Safety (Maritime Industry) Act

The OHS(MI) Act applies to ‘prescribed ships’ and ‘prescribed units’ (that is, ships and units covered by Part II of the Navigation Act) engaged in trade or commerce: between

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ustralia and places outside Australia; between two places outside Australia; between the States; within a Territory; between a State and a Territory; or between two Territories.

In addition, the Act applies to offshore industry vessels subject to a declaration under subsection 8A(2) of the Navigation Act and trading ships subject to a declaration under subsection 8AA(2) of that Act.

This means that the OHS(MI) Act has wider application than the Seafarers R&C Act, which applies to declared vessels only if they are ‘prescribed ships’ and not to offshore industry mobile units.

Training for Occupational Health and Safety Representatives

During the year, the Authority considered the low take-up and completion rates of training of representatives in the shipping industry. The approved training course Maritime Industry Health & Safety Representatives Distance Learning Course comprises a package of audio cassettes and course work and is available to all seafaring personnel through their employers. Seafarers are able to complete the course at their own pace and, with the agreement of their employer, during working hours.

Notwithstanding the self-paced style of the training, the A uthority noted that few seafarers were accessing and completing the course. Members agreed to give the matter further consideration in the year ahead, including to identify reasons for the low rates of take-up and completion of the package and measures to improve performance in this key area

of safety awareness.

Activities of the Inspectorate

The Australian Maritime Safety Authority (AMSA) performs the inspectorate function under the OHS(MI) Act. AMSA marine surveyors are appointed as inspectors and carry out investigations under the Act.

Statistics on inspection activities are in Chapter 4: Performance Report. A more comprehensive report of AMSA’s activities is provided in its 1998-99 Annual Report.

In 1998-99 four companies were charged with breaches of the OHS(MI) Act. Three companies were charged with failing to comply with sections 11 and/or 13 of the Act, including:

• one charged with breaching section 11 of the Act where it is alleged that the company failed to comply with its duty of care in an incident in which eight seafarers were injured when a lifeboat fell 20 metres during a lifeboat drill. This case is yet to be heard;

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two (comprising a ship management company) were fined $6000 each and ordered to pay costs of more than $3500 in relation to an incident in which a contractor’s employee suffered severe injuries when crushed by a lift in the lift shaft. Both companies pleaded guilty to failing to take all reasonably practicable steps to protect the health and safety at work of contractors and employees. The magistrate found that

although the companies had a sound theoretical approach to safety, certain precautions had not been implemented appropriately.

Another company was convicted under section 24 of the Act in relation to the same incident, but has appealed to the Supreme Court of Victoria on a point of law.

2.4 Other Business

Advice to Industry

The Authority issues notices to advise industry parties of changes in benefit levels and other matters. In 1998-99 the Authority issued five notices, free of charge, to more than 150 interested parties including operators, industry associations,

trade unions, insurance brokers and solicitors. In future, notices will be made available to the public through the Authority’s web site.

Social Justice

A social objective of the Seafarers R&C Act is to ensure that seafarers are not unfairly disadvantaged because of work-related injuries. The Authority reinforces this objective by providing information about the scheme to seafarers, employers, maritime unions, industry associations, insurance brokers and the legal profession.

In 1998-99 the Authority agreed to implement mechanisms to improve access to information on rights, entitlements and obligations under the Seafarers R&C Act including:

• development of an Internet site (http://www.seacare.gov.au). The site provides information on the role of the Authority, membership details, notices about the operation of the Acts, contact details for inquiries and links to relevant sites and

legislation; • creation of a separate email address iseacare@dewrsb.gov.au) for general inquiries and correspondence for the Authority; and • establishment of a dedicated voicemail service to ensure that

all inquiries are dealt with in an efficient and timely manner.

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ccess and Equity

The Authority complies with all relevant anti-discrimination legislation. It provides information, free from prejudice, to all members of the public.

Client Service Charter

The Authority operates in accordance with the client service charter of DEWRSB.

Internal and External Scrutiny

In 1998-99 the Authority received no requests for information under the Freedom o f Information Act 1982, nor any inquiries from the Commonwealth Ombudsman or in relation to matters under the Privacy Act 1988.

Although the Authority itself was not scmtinised by any external organisations, the Australian National Audit Office approached DEWRSB to obtain inform ation about the Seafarers Rehabilitation and Compensation Levy Collection Act 1992 and the Seafarers Rehabilitation and Compensation Levy Act 1992. The Department reported that the Acts had been developed as a contingency measure and that the industry levy was not operative at present. The levy will remain inactive as long as AMIGA, the agency approved as ‘the Fund’ under the Seafarers R&C Act, continues to satisfy the requirements of sections 96 and 97 of that Act.

To ensure that the Minister can be satisfied that AMIGA continues to meet its obligations under the Seafarers R&C Act, DEWRSB now seeks an annual report from AMIGA on coverage and insurance information.

Requests for Information

Members of the public may obtain information about the Authority or advice on how to lodge a request for information under the Freedom of Information Act by contacting:

Executive Officer Seafarers Safety, Rehabilitation and Compensation Authority GPO Box 9879 CANBERRA ACT 2601 Phone: (02)6121 7120 Fax: (02)6121 7907 E-mail: seacare@dewrsb.gov.au

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dministrative Support

The Authority does not have its own staff. The secretariat function of the Seacare Authority is undertaken by DEWRSB. The costs of the Authority are met from the Department's appropriation.

Consultancy Services

The Authority commissioned no consultancies in 1998-99, but was keenly interested in two consultancies commissioned by DEWRSB. One concerned the accuracy and reliability of the Seacare workers’ compensation data. The other was concerned

primarily with the development of safety performance indicators for the Australian shipping industry. These consultancies are discussed briefly below.

Report on Seacare Compensation Scheme Data

In October 1998, DEWRSB engaged William M Mercer Pty Ltd to consider the comparability of the Seacare workers’ compensation and rehabilitation data with the data provided by other jurisdictions participating in the CPM project. The final report Report o f the Seacare Compensation Scheme Data was provided to DEWRSB in January 1999. Among other things, the report:

• considered the level of comparability with data from other workers ’ compensation jurisdictions; • recommended a method to adjust maritime data in order to establish an appropriate basis for comparison with other

jurisdictions; and • highlighted a range of measures required to improve the Seacare data quality.

Safety Performance Indicators for the Australian Shipping Industry

In January 1999, DEWRSB engaged Access Economics Ltd to assist the Safety Performance Indicators (Shipping Industry) Committee to develop a suite of ‘outcomes’ and ‘process’

focused safety performance indicators for the Australian shipping industry. A final report entitled Safety Performance Indicators for the Australian Shipping Industry was provided to the Committee in 1998-99 and its recommendations will be

considered in 1999-2000. The consultancy involved:

• a stock-take of existing performance indicators on OHS, return to work and workers’ compensation performance indicators in the shipping industry; • identification of industry specific issues that affect OHS,

return to work and workers’ compensation;

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development of a suite of ‘process’ safety performance indicators for the shipping industry that are consistent with the International Safety M anagem ent Code of the International Maritime Organization (IMO); • consideration of the performance indicators developed under

the CPM project, conducted under the auspices of the Workplace Relations Ministers’ Council; • identification of methods of collecting the proposed performance indicators; and • discussion of the proposed indicators at meetings of the

Committee.

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HAPTER 3

Amendments to Legislation

In 1998-99 DEWRSB took action to amend the Occupational Health and Safety (Maritime Industry) Regulations 1995 (the OHS(MI) Regulations) to introduce new reporting requirements and time limits for incidents that occur on board vessels covered by the OHS (MI) Act. The new requirements were gazetted to

commence on 1 July 1999.

The OHS(MI) Regulations introduced new Incident Alert and Incident Report forms. These forms were developed by AMS A to streamline reporting requirements under the Navigation Act as well the OHS(MI) Regulations. Under these revised

arrangements, an operator must:

• notify AMSA of incidents in accordance with the Incident Alert form within four hours of becoming aware of the incident or as soon as practicable at the end of that time; and • report incidents to AMSA in accordance with the Incident

Report form within 72 hours of becoming aware of the incident or as soon as practicable at the end of that time.

The types of incidents that must be reported include:

• accidents that cause death or serious personal injury; • accidents that cause persons to be incapacitated for work for five or more successive days; and • dangerous occurrences—that is, occurrences that arise from

an undertaking conducted by or for an operator and which occur at a workplace and might have caused the death of or serious personal injury to any person, or the incapacity of an employee for five or more successive working days.

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APTER 4

Performance Report

4.1 Rehabilitation and Compensation Statistics AMIGA collects and prepares rehabilitation and compensation data for the Authority. Every endeavour has been made by AMIGA to collect all statistical data for 1998-99, but it is possible that some data has not been received in time to be included in

this Report.

It is difficult to compile accurate information on the number of seafarers covered by the Seafarers R&C Act. A number of ships are not directly subject to the Act, some operate for only

part of the year, and others experience crew changes in the course of the year. For these reasons, the Authority has in past years reported the estimated number of employees covered by the Act at the end of the financial year.

In 1997-98 the Authority estimated whole-of-year crewing data instead. This approach took account of the crew numbers of all ships operating during the period, and has been continued in 1998-99.

In 1998-99 about 3,530 seafarers were affected by the Seacare scheme either by direct legislative coverage or through award and/or agreement provisions. Of the seafarers affected by the Seacare scheme, about 2,800 (or 79 per cent) were directly covered by the Act, and about 730 (21 per cent) were not covered by the Act but had equivalent industrial entitlements.

The tables below show data on workers’ compensation claims made by seafarers directly covered by the Seafarers R&C Act.

Appendix 4 provides workers’ compensation time-series data on the operation of the scheme as it applies to seafarers covered by the Act and extends to other seafarers with equivalent entitlements under industrial awards and agreements.

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ble 8— Claims by nature of injury, 1998-99

N a tu re o f In ju ry N o o f c la im s % o f c la im s

S tra ins, s p ra in s of jo in ts a n d a d ja c e n t m u s c le s 76 45

F ra ctu re s (in clu d in g verte bra l) 27 16

C on tu sio ns 11 7

O p en w o u n d s 10 6

M en tal d is o rd e rs 8 5

Hernias 5 3

D is o rd e rs o f m u s c le te n d o n s a nd so ft tis s u e s 4 2

S u pe rficia l injuries 3 2

D a m a g e to artificial aid s 3 2

D is lo ca tio n s 2 1

R e sp ira to ry d ise ase s 1 1

D eafness a n d o th e r ear d ise a se s 1 1

B u rn s a n d sca ld s 0 0

O ther 19 11

T O T A L 170 1 0 0 *

Table 9— Period of incapacity for time lost claims (excluding rejected claims), 1998-99

P e rio d o f in c a p a c ity N o o f c la im s

C lo s e d cla im s L ess th a n 3 m o n th s ’ in c a p a c ity 105

3 to 6 m o n th s 16

6 to 12 m o n th s 5

O ve r 12 m o n th s 0

Total c lo s e d cla im s 126

A ctive cla im s 61

T O T A L 187

4.2 Occupational Health and Safety Statistics Statistical reports made by operators under Regulation 16 of the OHS(MI) Regulations indicated that about 2,890 full-time-equivalent employees were covered by the OHS(MI) Act during 1998-99, and that those employees worked a total of 492,960 hours in the industry.

In the past financial year, AMSA has:

• recorded five dangerous occurrences (compared with three in 1997-98); • received 63 OHS Incident Reports (down from 124 reports in 1997-98); • issued eight improvement notices (down from 13 in 1997-98); • issued no prohibition notices (down from two notices in 1997-98); • trained 15 AMSA surveyors in enhanced OHS investigation and inspection techniques.

The reduction in the number of incident reports should be interpreted cautiously because there might be a number of industry structural factors affecting the result.

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PPENDIX 1 List of Enactments administered by the Minister for Employment, Workplace Relations and Small Business through the Seafarers Safety, Rehabilitation and Compensation Authority

Seafarers Rehabilitation and Compensation Act 1992

Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992

Seafarers Rehabilitation and Compensation Levy Act 1992

Seafarers Rehabilitation and Compensation Levy Collection Act 1992

Occupational Health and Safety (Maritime Industry) Act 1993

Seafarers Rehabilitation and Compensation Regulations

O ccupational H ealth and Safety (M aritim e Industry) Regulations 1995

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PPENDIX 2

Publications—Issued to Maritime Industry Organisations and other Interested Parties 1998-99

5/1998 Maximum Level o f Weekly Benefits (13 August 1998)

6/1998 Maximum Level o f Weekly Benefits (19 November 1998)

1/1999 Maximum Level o f Weekly Benefits (4 March 1999).

2/1999 Maximum Level of Weekly Benefits (20 May 1999)

3/1999 Indexation—Increase In Benefits From 1 July 1999

Guide to the Assessment of the Degree o f Permanent Impairment

All of the above publications were issued free of charge.

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PPENDIX 3

Significant Administrative Appeals Tribunal Decisions and Court Judgments In 1998-99 the AAT decided six matters and the Federal Court decided two cases concerning the Seafarers

Rehabilitation and Compensation Act 1992. In addition, the Supreme Court of Western Australia heard a case concerning the validity of section 54 of the Act. This appendix summarises the more significant decisions of

these quasi-judicial and judicial bodies.

A3.1 Administrative Appeals Tribunal Decisions

Finestone and Broken Hill Proprietary Ltd [1998] AATA 832

The issue in this case was whether a stroke suffered by the applicant in the course of his employment constituted a ‘disease’ or ‘injury’ as defined in section 3 of the Seafarers R&C Act.

The applicant suffered a stroke ‘during the course of his employment’. Medical evidence evinced that the stroke had been caused by a local blockage of the artery rather than a rupture of the artery itself. On this basis, the company argued

that the applicant’s stroke constituted a ‘disease’ rather than an ‘injury’ and was therefore not compensable.

While the case was in process, the Full Federal Court brought down its judgment in the case of Australian Postal Corporation v Simon John Burch [1998] FCA 944. The facts in that case were substantially similar. The Court considered these in the context of the definitions of ‘injury’ and ‘disease’ under the Safety, Rehabilitation and Compensation Act 1988 and held that the applicant’s stroke constituted an ‘injury’ under that

Act and was compensable.

The AAT noted that relevant legislation in Burch involved a consideration of definitions that are ‘for all intents and purposes identical’ with the counterpart provisions in the Seafarers R&C Act. It determined, and the company agreed, that Burch was binding, and that the applicant deserved a finding not with

standing that Burch’s employer had sought special leave to appeal to the High Court. The AAT found that the stroke constituted a compensable ‘injury’ under the Seafarers R&C Act.

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awson and State ships [1999] AATA 231

The issue in this case was whether a draft uncertified agreement between a company and its employees should be used as a basis to calculate the quantum of compensation entitlement.

The applicant submitted that in calculating his ‘normal weekly earnings’, regard should be had to wage increases provided in the document Draft Without Prejudice, Union Bulk Ship Maritime Union of Australia Enterprise Agreement 1997, which had been paid to employees since the date of the compensable

injury. He argued that it was within the spirit and the letter of subsection 13(5) of the Act that actual wages paid to persons covered by his former classification be taken to be his ‘normal weekly earnings’.

The AAT determined that 13(5) had no application as it was concerned only with wage increases arising from incremental advancement or the reaching of a particular age. Subsection 13(6) deals with increases or decreases in wages as a result of

‘the making, alteration of an award, determination and certified agreement or the doing of any other act or thing under such a law’, but was also found to have no application as there had been no such increases. The applicant’s ‘normal weekly earnings’ were therefore found to be governed by the relevant award, not the award as varied by the draft uncertified agreement.

Zutt and Total Marine Services Pty Ltd [1999] AATA 313

The issue in this case was whether incapacity to engage in work of the same level at the time of injury entitled the applicant to compensation under the Seafarers R&C Act.

The applicant sought a review of a determination by the employer to cease compensation payments. She was paid compensation until 23 March 1998 and afterwards received social security sickness benefits. On 1 November 1998 the applicant secured casual employment as a cook, or assistant cook, on board the Spirit o f Tasmania, where her duties involved

less lifting and carrying of heavy weights, and on a safer, more modern ship.

The applicant submitted that she was entitled to compensation from 23 March 1998 to 1 November 1998 on the ground that she had ‘an incapacity to engage in work as an employee at the same rank or level at which he or she was engaged immediately before the injury happened’ in accordance with subsection 8(b) of the Seafarers R&C Act.

The AAT determined that the applicant was entitled to compensation for the claimed period. It considered that

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bsection 8(b) meant that the applicant 'must have the capacity to engage in work as an assistant cook at sea, rather than she must have the capacity to engage in work as an assistant cook, e.g. on land’. In making its determination, the AAT noted that in

a ‘fleet there would be a range of ships with differing facilities and a person who had been injured may be able to work on some but not all’.

A3.2 Federal Court Judgments

Alan Esam v ASP Ship Management [1998] 1129 FCA (10 September 1998)

This case involved a Federal Court appeal against an AAT decision that was reported in the 1997-98 Annual Report. The key issue is whether the state of the labour market is a relevant consideration when calculating the amount of compensation

payable.

The applicant suffered an injury in 1995 and was later assessed to be no longer fit for employment that involved squatting and performing lifting tasks below waist level; he was, however, considered to be physically suited to sedentary work. The

applicant had actively sought work but had been unsuccessful. Subsequently, his employer decided to reduce the amount of compensation payable to him on the basis that he was capable of undertaking clerical work. The AAT dism issed the

application to review the employer’s decision to reduce his wage on the ground that his failure to secure work was due to economic reasons and not any incapacity caused by work.

The Federal Court set aside the AAT decision and remitted it back to the Tribunal for determination. Essentially, the Court found that, in reaching its decision, the AAT had erred in law by failing to give proper consideration and weight to the state of

the labour market at the relevant time. The Court explained that the applicant would not be seeking work ‘but for’ the injury and that it would be difficult to support a view that the inability to find work was the result of economic circumstances or the

state of the labour market alone.

A3.3 Supreme Court Judgments

Stephen Paul Smith & Ors v Australian National Line Ltd & Anor [1998] 159 ALR 431

The issue in this case is whether section 54 of the Seafarers R&C Act is invalid because it is contrary to section 51(xxxi) of the Australian Constitution, which concerns the acquisition of property by the Commonwealth on just terms.

Mr Smith was injured on 7 December 1988 while rigging and shackling a pilot ladder on board a vessel owned by Australian

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ational Line. He was injured again on 8 December 1988 while pulling an electric generator across the deck of the same vessel.

Mr Smith brought an action for damages against the company and the Commonwealth for a breach of duty in tort and a breach of contract of employment. The defendants claimed that the action was statute barred by section 54 of the Seafarers R&C Act, which provides that a seafarer cannot bring an action against his or her employer for injuries suffered in the course of employment. This provision operated subject to section 13 of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992, which allowed seafarers to bring actions within six months of the commencement of section 54 of the primary Act.

Mr Smith argued that section 54 of the Act was indistinguishable from section 44 of the Safety, Rehabilitation and Compensation Act, which the High Court had held was invalid in Georgiadis v AOTC (1994) 179 CLR 297 in so far as it purported to extinguish causes of action that had not been statute barred when they had commenced. Section 44 had been held invalid on the basis that it acquired property on other than just terms, contrary to section 5 l(xxxi) of the Constitution.

In the first instance, a single judge of the Supreme Court of Western Australia upheld the validity of section 54 of the Act. Mr Smith appealed to the Full Court of the Supreme Court of Western Australia, which upheld the validity of section 54 of the Act in a majority decision.

Mr Smith has applied for special leave to appeal against the judgment in the High Court.

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A

PPENDIX 4 Workers’ compensation data covering seafarers covered by the Seacare scheme and those with equivalent entitlements

The tables below provide time-series data on workers’ compensation claims by seafarers covered by the Seafarers R&C Act or who have equivalent entitlements.

Table A4. 1—Nature of claims

T y p e o f C la im 1 9 9 6 -9 7 1 9 9 7 -9 8 1 9 9 8 - 9 9

T im e lost 433 342 193

M ed ica l e x p e n s e s o n ly 77 39 24

P ro p e rty lo s s /d a m a g e 5 0 3

P e rm a ne nt im p a irm e n t 5 0 0

Death 0 0 0

T O T A L 5 2 0 381 220

Table A4.2— Claim Rates bv Job Classification ( N o o f c l a i m s x iooi p o p u l a t i o n

W o rk g r o u p c la s s ific a tio n 1 9 9 6 -9 7 1 9 9 7 -9 8 1 9 9 8 -9 9

D eck o fficers 5.2% 4.5% 2.8%

E n gin ee rin g officers 6.0% 5.7% 4.8%

In te grate d ra tin g s 18.9% 14.9% 8.4%

C atering D e p a rtm e n t 15.1% 10.6% 8.9%

Trainees3 n/a 1.5% 1.0%

T O T A L 1 2 .1 % 9 .4 % 6 .2 %

8 Total trainee claim rates w e re n o t available for 1 9 9 6 -9 7

Table A4.3— Location of person at time of injury by activity

L o c a tio n b y a c tiv ity 1 9 9 6 -9 7 1 9 9 7 -9 8 1 9 9 8 - 9 9

W o rk in g on s h ip 513 378 215

W o rk in g a sh o re 2 0 1

A t tra in in g c o u rs e 2 1 2

J o u rn e y to o r fro m sh ip 3 2 2

T O T A L 520 381 220

Table A4.4— Location of person at time of injury by place

L o c a tio n b y P la c e 1 9 9 6 -9 7 1 9 9 7 -9 8 1 9 9 8 - 9 9

D eck spaces* 263 197 93

M a ch in e ry sp a c e s 91 56 37

A c c o m m o d a tio n b lo c k 65 59 35

Other 52 36 33

G alley 36 24 19

G a n g w a y /p ilo t la d d e r 12 6 3

W harf 1 3 0

T O T A L 52 0 381 220

a In c lu d e s c a rg o s p a c e s

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Ta

ble A4.5— Claims by body part

B o d y P a rt 1 9 9 6 -9 7 1 9 9 7 -9 8 1 9 9 8 -9 9

L o w e r lim b 123 86 57

Trunk 69 56 24

B a ck 111 66 35

U p p e r lim b 122 107 62

H ead a nd neck 53 36 17

U p p e r a n d lo w e r lim b s 2 0 0

M u ltip le 11 16 9

P s y c h o lo g ic a l syste m in g en e ra l 12 8 7

O ther 17 6 9

T O T A L 520 381 220

Table A4.6— Mechanism of injury

M e c h a n is m 1 9 9 6 -9 7 1 9 9 7 -9 8 1 9 9 8 -9 9

B o d y stre ssin g 202 150 71

Falls, trip s and s lip s o f a p e rso n 127 97 56

B e ing h it b y m o v in g o b je c ts 66 51 34

H ittin g o b je c ts w ith a p a rt o f th e b o d y 37 30 21

M ental stress 14 11 6

S o un d and pressure 8 2 2

B io lo g ic a l fa cto rs 24 9 4

Heat, ra d ia tio n and e le c tric ity 2 3 3

C h e m ic a ls and o th e r su b s ta n c e s 12 4 3

O th e r a nd u n sp e cifie d m e c h a n is m s o f in ju ry 28 24 20

T O T A L 520 381 220

Table A4.7— Claims by nature of injury

N a tu re o f In ju ry 1 9 9 6 -9 7 1 9 9 7 -9 8 1 9 9 8 -9 9

S trains, s p ra in s of jo in ts a nd a d ja c e n t m u s c le s 261 168 100

F ra ctu re s (in clu d in g vertebral) 60 53 28

C ontusions 21 8 16

O pen w o u n d s 26 25 13

M ental d iso rd e rs 14 11 9

Hernias 21 15 8

D is o rd e rs o f m u scle te n d o n s and soft tissu e s 29 34 7

S u perficial injuries 10 8 4

D a m a g e to artificial aids 8 1 3

D islo catio ns 6 7 2

R esp ira to ry diseases 7 6 2

D eafness and o th e r ear d ise ase s 8 3 2

B urns a n d sca ld s 1 3 0

Other 48 39 26

T O T A L 520 381 220

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In

dex to Government reporting requirements

R e q u ir e m e n t P a g e

Chairperson’s R eport............................................................................ 1

Aids to access Table of Contents.......................................................................... iv

Glossary of Acronyms.................................................................. 32

Corporate Overview Objectives (Functions)....................................................................3

Social justice............................................................................... 13

Corporate structure........................................................................ 4

Legislation and statutory authorities............................. 3, 8, 9, 11, 17 Non-statutory bodies...................................................................n/a

Government companies................................................................n/a

EEO in appointments...................................................................... 6

Major documents......................................................................... 24

Client Service Charter................................................................. 14

Program reporting Activities........................................................................................ 7

Human resources..................................................................................n/a

Other resources....................................................................................n/a

External scrutiny Reports by Auditor-General.........................................................n/a

Inquiries by Parliamentary Committees..........................................n/a

Comments by the Ombudsman.................................................... 14

Decisions of courts and tribunals................................................... 25

Freedom of information......................................................... 14, 24

Privacy....................................................................................... 14

Ghent comments...........................................................................n/a

Impact monitoring................................................................................ n/a

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G

lossary of Acronyms

AAT Administrative Appeals Tribunal

AGS Australian Government Solicitor

AMIGA Australian Maritime Industry Compensation Agency

AMS A Australian Maritime Safety Authority

DEWRSB Department of Employment, Workplace Relations and Small Business

CPM Comparative Performance Monitoring

EEO Equal Employment Opportunity

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T H E PARLIAMENT O F T H E — Ί Τ Η O F A U S T R A L I A

O M M O N W E A L T H O F

PARLIAMENTARY PAPER No. 405 of 1999 O R D E R E D T O B E P R I N T E D

I S S N 0 7 2 7 - 4 1 8 1