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This Digest was prepared for debate. It reflects the legislation as
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CONTENTS
Marine Personnel Legislation Amendment Bill
1996
Date Introduced: 27 November 1996
House: Senate
Portfolio: Transport and Regional
Development
Commencement: Royal Assent except:
The Bill amends the Seafarers Rehabilitation and
Compensation Act 1992 (the Principal Act) and the
Occupational Health and Safety (Maritime Industry) Act
1993 (the OH&S(MI) Act) so as to streamline the
application of those acts to seafarers injured in the course of
their employment.
The issue of occupational health and safety has assumed a high
profile since the 1992 Ships of Shame report and its 1995
sequel report.(1)
The Principal Act provides a statutory scheme for compensating
and rehabilitating seafarers who are injured during the course of
their employment.In many respects it is similar to compensation
regimes applicable to other Commonwealth employees. The Principal
Act requires each employer to hold a suitable insurance policy and
establishes the benefits payable to an incapacitated worker.Like
the COMCARE legislation, the emphasis of the Principal Act is on
the rehabilitation of affected workers.
The Annual Report (1995-6) of the Seafarers Safety,
Rehabilitation and Compensation Authority ("the Authority") at p8
notes that the Principal Act does not apply to seafarers on
ships:
"which are engaged in trade or commerce between places outside
Australia ( so called cross-trading ships).A number of Australian
ships, mainly oil tankers, periodically engage in cross-trading."
(2)
One of the aims of the Bill is to extend the application of the
Principal Act to cover this situation.
The Annual Report of the Authority further states (at p15) that
there has been a reduction in the number of ships in the Australian
fleet in the past year (1995-96), and consequently the average
number of seafarers covered by the Principal Act has fallen.The
figures show that the average number of seafarers covered fell from
4,830 in 1994-95 to 4,570 during 1995-96.Of the 4,570 seafarers
covered, approximately 3,900 were serving on ships that were fully
covered by the Principal Act and some 670 were serving on ships
that were covered by either an industrial agreement or an
industrial award.The total number of claims for 1995-96 was 658, an
overall increase on the 1994-95 total of 574 claims.However, it
perhaps should be noted that although there was an increase in the
number of claims there was a decrease in the number of claims for
death or permanent impairment.(3)
There is an International Labour Organization (ILO) document
entitled "Code of Practice on Accident Prevention on Board Ships at
Sea and in Port".The Authority has agreed in principle to adopt
this code, when the code sets a higher standard than is already in
place under the OH&S(MI) Act.This is being done by consultation
with AMSA and the maritime industry.
Seafarers Rehabilitation and Compensation Act 1992
Item 7 repeals the references in the definition
of an employee to a 'company trainee' and to an 'industry trainee'.
These are redundant given that the definition of a 'trainee' in
section 3 already refers to both types of trainee.
Item 11 inserts new subsection 9(2A) which
defines a journey to and from a place of residence so as to start
it (or finish it) at the boundary of the parcel of land on which
the residence is situated.If the person happens to own two separate
but contiguous blocks, then they are treated as a single block and
the journey starts or ends at the boundary of the 'single'
block.(The Principal Act provides compensation cover in relation to
journeys between an employee's place of residence and their place
of work).
Item 12 extends the application of the
Principal Act to employees working on a ship that travels between
two places outside Australia.Previously, the ship had to be engaged
in trade or commerce either within Australia or between Australia
and somewhere outside Australia.
Item 14 inserts a new section 20A which will
allow the Seafarers Safety, Rehabilitation and Compensation
Authority (established under section 103 of the Principal Act) to
exempt employees of particular ships or groups of employees from
the Principal Act.Such exemption can be made subject to certain
conditions (proposed subsection 20A(2)) but must be consistent with
Australia's obligations under international agreements.
Item 16 repeals the existing subsection
28(6)(a) and replace it with a new subsection.The existing
entitlement to claim for the costs of remainingin a location for
the purposes of obtaining medical treatment will be removed.The new
subsection allows a maximum claim for the costs of a journey (which
is necessary in order for the injured person to obtain treatment)
equal to travel from where the person resides. A similar provision
is substituted for the existing paragraph 49 (6A)(a) by
Item 25.
Item 17 similarly inserts a new subsection
28(6A) which restricts the amount of compensation payable in
respect of a journey to that that would have been payable if the
journey had been made from the employee's usual place of
residence.A similar provision is substituted for the existing
paragraph 49 (6B) by Item 26.
Item 29 similarly amends subsection 50(2A)(a)
to limit the employer's liability to pay compensation for a journey
to receive rehabilitation to the situation where the journey
commences in Australia (where the employee is residing).
Item 30 limits the amount of compensation
payable in respect of a journey to the amount which would have been
payable if the journey had been made from the employee's usual
place of residence.
Items 33-36 amend section 53 so as to omit any
references to an employer being a body corporate.In
particular,paragraph 53(1)(d) is amended so that the word
"employer" in Part 4 of the Principal Act, relates only to persons
who might own , manage, charter or operate the ship,The term
'person' includes bodies corporate as well as natural people.
Items 37-40 of the Bill amend section 66 of the
Principal Act, which deals with the power of the employer to
require an injured worker to undergo certain medical examinations
at the employer's expense.Item 39 provides that
the employer need only pay public transport expenses, ambulance
services expenses or private car expenses that were reasonably
incurred and provides a formula for working out the amount payable
if the employee used a private motor vehicle.The available public
transport, transport routes and accommodation must all be
considered by the employer when considering what constitutes a
reasonable expense.
The existing section 67 allows the employer to require an
injured employee to provide certain information relevant to the
case. Item 41 will amend section 67 to provide
that where an employee can obtain 'without unreasonable expense or
inconvenience' a document etc then the employer can require them to
do so or can ask for a written authority to obtain the same
information from the custodian of the information.Item
41 also removes the requirement for the employee to
provide the requested document etc within 28 days.
Item 46 replaces the existing sections 72 and
73, which dealt with the time limits within which an employer must
process a deceased worker's claimand an incapacitated worker's
claim respectively (generally 60 days and 12 days respectively).The
proposed alterations will extend the 60 day limit (on the
application of the employer to the Authority and the Authority's
approval) to include the number of days that an employee (defined
to include the estate's representative) takes to produce supporting
documentation requested by the employer pursuant to section
67.There is no direct reference in the proposed section 72 to allow
an employee to explain why they have not provided the
documentation.It could be possible that the information is not
obtainable by the employee 'without unreasonable expense or
inconvenience' (proposed subsection 67(1) wording).If this were to
occur, there is no obligation on the employee under proposed
subsection 67(1) to so obtain the information and yet there is no
method of informing the Authority of this (other than relying upon
the employer to inform them) during the period that the Authority
is considering whether to extend the 60 day time limit.It is
conceivable that this could be used as a stalling tactic by
unscrupulous employers.
Proposed section 73 extends the scope of the existing section to
include not only non-fatal injuries to employees but also to the
lost or damaged property of the employee and to the cost of medical
treatment.As with proposed section 72, the time limit within which
an employer must determine the claim may be extended to equal the
extent of the delay in the employee providing requested
documentation.
Proposed section 73A is similar in its terms to the above two
proposed sections, but deals with the time limit for an employer
determining a claim for permanent impairment (generally 30
days).
Item 55 replaces existing section 79 with a new
provision which extends the time within which an employer must
determine an employee's request for a reconsideration.The existing
section requires that it be done within 35 days after the employer
receives the request.The proposed section essentially changes this
to 60 days or such other period as the Authority may allow.Reasons
for an extension include the fact that an employee has failed to
provide information that they would be able to provide and the fact
that the employer requires the employee to undergo certain further
medical examinations (see item 62).
Item 56 preserves the application of the
existing provisions to requests for reconsideration made prior to
the proposed provisions taking effect.
Items 59 and 60 deal with the situation where
an employer gives written notice to the claimant that they require
certain information or documentation.Item 60 deems the claimant to
have complied with the employer's notice if they have provided all
the information requested in the notice.
Item 62 inserts a new provision which will
allow an employer,considering a request for reconsideration of a
determination,to require the claimant to submit to certain medical
examinations.Previously, the employer was only able to do this with
the initial application for compensation and not when a claimant
had submitted a request for a reconsideration of a determination.
The employer may nominate the legally qualified medical
practitioner but must pay for the examination and any associated
transport costs that are reasonably incurred.The employer may
require the claimant to hand over the medical report, although if
the claimant refuses to do so, proposed subsection 83A(10) allows
the employer to refuse to reconsider the determination until the
medical report is received.
Item 65 adds new subsection 90(3) which makes
the report of a medical practitioner (procured under subsection
83A) inadmissible without the leave of the AAT in circumstances
where the claimant failed to provide the employer with a copy of
the report prior to the employer determining the claim.Item
66 amends existing paragraph 91(3)(b) so that, when
considering the issue of costs, the AAT may exempt those costs that
result from the claimant failing to disclose a medical report to
the employer.
Item 71 amends subsection 92(6) to include a
District Registrar in the list of people who may tax a bill of
costs in the AAT.District Registrars are already listed in the
Administrative Appeals Tribunal Act 1975 as being able to
tax bills of costs. The taxation of a bill of costs is a procedure
in most courts and tribunals for assessing the reasonableness of a
party's legal costs.The party files a bill of costs claiming every
item of work done. The District Registrar (or Registrar etc) then
goes through each item claimed and decides whether it should be
allowed in full, reduced or not allowed.At the end of this process,
a final figure for "costs" is reached and a certificate of taxation
can be signed by the District Registrar.
Item 72 deems an employer to be a party to the
proceedings when they are ordered to pay the costs of the
proceedings.
Existing paragraph 93(1)(b) of the Principal Act sets out that
employers must have insurance from authorised insurers or from
approved 'protection and indemnity associations'.Item
73 expands the options available by allowing an employer
to be a member of an employers' mutual indemnity association that
has been approved by the Authority.
Item 75 exempts such insurance contracts from
any stamp duty or other tax imposed by a State or Territory.
Item 83 allows a delegate of the Chief
Executive Officer of the Australian Maritime Safety Authority to be
one of the members of the Authority.
Item 91 replaces subsection 126(1) with a
provision that enables an employer determining a claim to give a
written notice to the claimant asking them for either the name and
address of previous employers or an authority to obtain that
information.
Items 94-96 repeal existing section 138 (which
prevents a claimant from 'double-dipping' ) and introduce section
139A which also has the effect of preventing a claimant from
double-dipping.The new provision achieves this by excluding the
operation of the State or Territory compensation law to the extent
that it covers the same claim covered by the Principal Act.
Item 98 includes the written notices of the
Minister in the class of disallowable instruments set out in
section 46A of the Acts Interpretation Act 1901.These
written notices include, for example, the Ministerial notice
establishing how frequently an employer can require an employee to
attend a medical examination and the specified rate to be paid per
kilometre travelled in a private motor vehicle.
Schedule 2 -Amendment of the OH&S(MI) Act
Item 1 amends the definition of accident in the
OH&S(MI) Act to remove the reference to 'contracting a
disease'.
Item 2 simplifies the definition of 'operator'
and will make it easier to show that someone was the operator of a
prescribed ship or unit.
Item 3 will amend the definition of 'prescribed
ship' so as not to specifically include an off-shore industry
vessel or a trading ship declared respectively under section 8A or
8AA of the Navigation Act 1912.Sections 8A and 8AA enable
the owner of the particular off-shore industry vessel or a trading
ship to apply to the Authority for a declarationthat the
Navigation Act 1912 will apply to their vessel.If the
owner makes such an application (and the Authority makes such a
declaration) then the vessel is already covered and so the proposed
amendment will not affect them.
Item 8 will amend subsection 109(1) to allow
not just the Authority but 'any other body' to prepare a code of
practice that the Minister may approve.
Item 9 amends section 121 to allow the
Governor-General to make regulations imposing penalties for the
contravention of the regulations, provided that they do not impose
a penalty greater than 10 penalty units.One penalty unit is
currently $100.
- Report of the House of Representatives Standing Committee on
Transport, Communications and Infrastructure (December 1992), Ships
of Shame. The November 1995 report of the House of Representatives
Standing Committee on Transport, Communications and Infrastructure
was entitled Ships of Shame - A Sequel.
- p8 Annual Report 1995-96, Seafarers Safety, Rehabilitation and
Compensation Authority.
- Ibid p15
Susan Downing
4 February 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
the public.
ISSN 1323-9031
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library,
1997.
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Last updated: 21 March 1997
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