Bills Digest No. 62 2002-03
Workplace Relations Legislation Amendment Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Workplace Relations Legislation
Amendment Bill 2002
26 June 2002
House: House of Representatives
Portfolio: Employment and Workplace
transfer operational responsibility commence 6 months after Royal
Assent if not proclaimed to commence earlier.
To effect a
statutory transfer of operational responsibility for the Seacare
Authority from the Department of Employment and Workplace Relations
There are a number of Commonwealth statutes
relating to occupational health and safety, workers compensation
and rehabilitation.(1) However, in terms of
workplace-based legislation, there are two major Commonwealth
schemes. The first relates to Commonwealth employees. The second
covers seafarers (the Seacare Scheme) and is the subject of the
amendments proposed by the Workplace Relations Legislation
Amendment Bill 2002.
The objects of the Occupational Health and
Safety (Commonwealth Employment) Act 1991 [OSH(CE) Act] are
preventive in nature and include securing the health, safety and
welfare at work of Commonwealth employees and employees of
Commonwealth workers injured in the course of
their employment are provided with workers compensation benefits
and rehabilitation programs under the Safety, Rehabilitation
and Compensation Act 1988 (SRC Act).
Among other things, the SRC Act establishes a
Safety, Rehabilitation and Compensation Commission (SRCC). The SRCC
has 10 members who meet at least three times per year. It carries
out regulatory functions under the SRC Act such as providing advice
to the Minister(3), producing guidelines for the
determination of Comcare premiums(4), and issuing policy
The SRCC also has functions under the OHS(CE)
Act for instance, it is required to ensure that statutory
obligations are complied with, provides Ministerial advice, advises
employers and employees about occupational health and safety,
collects and analyses occupational health and safety information,
formulates occupational health and safety policies and strategies,
and accredits courses.(6)
Underpinning both statutory schemes is Comcare.
Comcare is established under the SRC Act.(7) Its
functions include managing workers compensation claims made by
Commonwealth employees. Importantly, too, it provides
administrative support under both the SRC Act and the OHS(CE) Act.
For instance, Comcare has a statutory duty(8) to supply
secretariat services, assistance and staff to the SRCC which has
neither its own staff nor its own budget.
The Seafarers Rehabilitation and
Compensation Act 1992 (the Seafarers Act) is part of a
Commonwealth legislative scheme covering occupational health,
workers compensation and rehabilitation for certain seafarers. The
Seafarers Act is concerned with workers compensation and
rehabilitation. It applies to seafarers or trainees employed on
prescribed ships (9) engaging in intra-territorial,
interstate or overseas trade or commerce.
The Commonwealth occupational health and safety
statute relevant to the maritime industry is the Occupational
Health and Safety (Maritime Industry) Act 1993 (Maritime
Industry Act). It is designed to address the causes of workplace
accidents and thus reduce workplace injury. Major elements in this
Act are a consultative framework for the ship operator and maritime
industry workers to cooperate in developing a safer working
environment and better work practices [and a codification of] the
duties of care to be observed by all who work on board ships and
offshore industry mobile units .(10)
The complementary relationship between the
Seafarers Act and the Maritime Industry Act is underscored by the
fact that the Seafarers Safety, Rehabilitation and Compensation
Authority (Seacare Authority), which is established under the
Seafarers Act(11), also has responsibilities under the
Maritime Industry Act.(12)
Under the Seafarers Act, the Authority s
functions include monitoring the operations of the Act, promoting
high standards of claims management and effective rehabilitation
procedures, cooperating with other bodies to reduce the incidence
of work-related injuries, formulating occupational health and
safety policies, accrediting occupational health and safety
courses, and providing advice to the Minister.(13)
Additional functions conferred on the Authority by the Maritime
Industry Act include ensuring that statutory obligations imposed by
that Act are complied with, advising operators and employees on
occupational health and safety matters, collecting and reporting on
information relating to occupational health and safety, formulating
policies and advising the Minister.(14)
Like the SRC, the Seacare Authority is a
part-time body(15) which does not employ its own staff.
Its costs have been met through the budget of the Department of
Employment and Workplace Relations.(16) It has seven
members.(17) The Department of Employment and Workplace
Relations has provided policy, administrative and secretariat
support to the Seacare Authority, while the Australian Maritime
Safety Authority has provided its inspectorate
Other legislative components of the Seacare
Scheme include the Seafarers Rehabilitation and Compensation
Levy Act 1992 (Levy Act) and the Seafarers Rehabilitation
and Compensation Levy Collection Act 1992 (Levy Collection
Act). The Seafarers Act enables a Fund to be established providing
safety net workers compensation coverage for seafarers with no
identifiable employer.(19) The Levy Act(20)
enables a levy to be imposed on employers who engage seafarers on
prescribed ships based on the number of seafarer berths on those
ships. The Levy Collection Act(21) contains procedures
for the collection of the levy. The Seacare Authority performs
functions under the Levy Act and administers the Levy Collection
The Authority assumed new responsibilities in
April 2002 when the Minister declared that the Authority perform
the functions of the safety net Fund (responsible for workers
compensation liabilities of injured seafarers whose employer no
longer exists, for example, where the employer has become
insolvent). The function had been successfully managed by the
Australian Maritime Industry Compensation Agency (AMICA) since
1993, but from January 2002 AMICA was unable to secure a policy of
insurance for the Fund as required by legislation. The Minister had
no legal alternative other than to declare the Authority as Fund
manager in such circumstances.(23)
Historically, there has been a close nexus
between the seafarers scheme and Commonwealth employees schemes.
This nexus existed from early this century (the first Seamen s
Compensation Act was enacted in 1909, the Commonwealth
Workmen s Compensation Act in 1912) until 1971, when the
Compensation (Commonwealth Government Employees) Act came
The two schemes diverged somewhat with the
enactment of the Compensation (Commonwealth Government
Employees) Act 1971, legislation that gave injured
Commonwealth employees access to rehabilitation programs. However,
the two schemes continued to provide similar benefit levels to
eligible workers. During the 1980s, when the Commonwealth employees
scheme was reviewed there was also a review of the seafarers scheme
by Professor Harold Luntz. The Luntz review terms of reference
included the policy proposals being prepared for the amendment of
the Compensation (Commonwealth Government Employees) Act and
associated administrative changes and the desirability of
consistency between the provisions of that Act and the Seaman s
Compensation Act. (25)
The review of the Commonwealth employees scheme
culminated in the enactment of the Commonwealth Employees
Rehabilitation and Compensation Act 1988 (now the SRC
The Seafarers Act, the then Government s
response to Luntz Review, was designed to replace the Seamen s
Compensation Act 1911 with modern and comprehensive
rehabilitation and compensation arrangements similar to those
applicable to Commonwealth employees .(26) It was also
designed to restore the former nexus with the workers compensation
legislation applicable to Commonwealth employees consistent with
the unitary compensation structure applying across public and
private sector employment in all the state and territory workers
compensation schemes .(27)
While the Seacare Scheme is modelled on the SRC
Act and the OHA(CE) Act, there are said to be important differences
between them related to the insurance arrangements of
employers.(28) Other differences have emerged following
amendments made to the Safety, Rehabilitation and Compensation
Act 1988 in 2001.(29) An
Issues Paper published in March 2002 by the Seacare Authority
comments that [g]iven that the Seafarers Act is largely modelled on
the SRC Act many of the  amendments also are potentially
necessary and relevant to the Seafarers Act . The Issues Paper
raised potential topics for legislative review. The submission date
for comments was 6 August 2002.
In a letter to stakeholders dated 28 June 2002,
the Chairperson of the Seacare Authority provided some background
to the Government s decision to transfer responsibility for the
Seacare Authority from the Department of Employment and Workplace
Relations to Comcare:
The Minister has advised the Authority that
there are three reasons for the new arrangements. First, he
considers there are sound operational and governance reasons for
this decision in that the location of the Seacare Authority with
Comcare will avoid potential conflicts of interest that occur from
time to time within his Department where officers who provide
secretariat support to the Authority also provide policy advice to
Government on the Seacare scheme.
Second, the current arrangements are considered
to be inefficient given that a small departmental secretariat is
attempting to support a small industry scheme when Comcare has the
staff and expertise across the full range of workers compensation
and occupational health and safety (OHS) issues. The Minister has
noted that availability of that expertise should serve to reduce
costs for both the Government and employers in the Seacare
Third, there are considered to be natural
synergies between the Comcare and Seacare schemes. Both are
industry-based schemes and the core business of each is injury
prevention, and the administration of OHS, compensation and
rehabilitation programmes. Comcare already supports the Seacare
scheme in relation to the conduct of the internal review function
on compensation decisions under the Seafarers Act; approval of
rehabilitation providers; and the provision of impairment policy
and assessment guidance for medical practitioners used in assessing
The Minister has provided an assurance that the
Seacare scheme will continue to be separate and autonomous...
The Authority has not yet had an opportunity to
consider the implications of this decision, but I consider there
will, overall, be advantages to the Authority and the
The new administrative arrangements involving
Comcare took effect on 1 July 2002.(31) However, the
statutory scheme, which refers to the Department(32),
has not yet been amended. That is the major purpose of the
Section 72A of the SRC Act requires Comcare to
provide assistance and staffing resources for the Safety,
Rehabilitation and Compensation Commission. Item 2
of Schedule 1 imposes similar duties on Comcare in
relation to the Seacare Authority.
Subsection 125(1) of the Seafarers Act enables
the Seacare Authority to delegate powers or functions to certain
senior Departmental officers. Item 6 repeals
subsection 125(1) and replaces it with a provision enabling the
Seacare Authority to delegate powers or functions to the Chief
Executive Officer of Comcare.
Item 8 enables the Chief
Executive Officer of Comcare to delegate all or any of these powers
or functions to his or her Deputy or a member of Comcare s
Items 10-14 and 16 replace
references in the Seafarers Rehabilitation and Compensation
Levy Collection Act 1992 to the Departmental Secretary with
references to the Chief Executive Officer of
Subsection 15(1) of the Seafarers Rehabilitation
and Compensation Levy Collection Act enables the Secretary of the
Department to delegate all or any of his or her powers or functions
(other than the power to issue identity cards) to a senior officer
of the Department. Item 15 replaces subsection
15(1) with a provision enabling the CEO of Comcare to delegate to
his or her deputy or to Comcare staff. The exception preventing
delegation of the power to issue identity cards is preserved.
Item 17 enables regulations to
be made which relate to the transfer of operational responsibility
for the Seacare Authority from the Department to Comcare.
Item 1 of Schedule
1 is designed to rectify an error in the Safety,
Rehabilitation and Compensation and Other Legislation Amendment Act
2001. The 2001 Act inadvertently repealed subsection 41A(2) of
the SRC Act. Subsection 41A(2) had commenced on 1 October 2001. The
inadvertent repeal took effect on 1 April 2002. Item
1 re-inserts subsection 41A(2) into the SRC Act.
Item 1 will not be commenced retrospectively but
rather on the date that the Bill receives Royal Assent.
Item 3 repeals section 94 of
the SRC Act. Section 94 prevents Comcare entering into contracts
worth more than $500 000 without Ministerial approval.
- These statutes include the National Occupational Health and
Safety Commission Act 1985, the Industrial Chemicals
(Notification and Assessment) Act 1989, the Australian
Radiation Protection and Nuclear Safety Act 1998, and the
Navigation Act 1912.
- Section 3, Occupational Health and Safety (Commonwealth
Employment) Act 1991.
- Section 89B, Safety, Rehabilitation and Compensation Act
- Section 97E, Safety, Rehabilitation and Compensation Act
- Section 73A, Safety, Rehabilitation and Compensation Act
- Section 12, Occupational Health and Safety (Commonwealth
Employment) Act 1988.
- Section 68, Safety, Rehabilitation and Compensation Act
- Section 72A, Safety, Rehabilitation and Compensation Act
- Prescribed ships are ships that are covered by Part II of the
Navigation Act 1912 in other words, ships registered in
Australia, engaged in the coasting trade or that have a majority
Australian crew and are operated by a firm or company whose
principal place of business is Australia. Section 10,
Navigation Act 1912.
- Second Reading Speech, Occupational Health and Safety (Maritime
Industry) Bill 1993, House of Representatives, Parliamentary
Debates (Hansard), 24 November 1993, p. 3569.
- Section 103, Seafarers Rehabilitation and Compensation Act
(accessed 6 November 2002).
- Section 9, Occupational Health and Safety (Maritime
Industry) Act 1993.
- Section 110, Seafarers Rehabilitation and Compensation Act
- Seafarers Safety, Rehabilitation and Compensation Authority,
Annual Report 2001-021.
- Section 109, Seafarers Rehabilitation and Compensation Act
(accessed 30 September 2002).
- See section 96, Seafarers Rehabilitation and Compensation
Act 1992. A person might not have an identifiable employer if,
for example, the employer became insolvent.
- The Act commenced on 10 April 2002 with Seacare as the Fund
manager. See letter from the Seacare Chairperson dated 28 June
(accessed 6 November 2002).
- Also commenced on 10 April 2002.
- Seafarer s Safety, Rehabilitation and Compensation Authority,
Annual Report 2001-02, p. 1.
- ibid., p. vii.
- CCH Australia Ltd, Australian Workers Compensation
Guide, p. 12, 642.
- Report of the Seaman s Compensation Review, AGPS,
1988, p. 249 and ibid.
- Mr Warren Snowden MP, Second Reading Speech, Seafarers
Rehabilitation and Compensation Bill 1992, House of
Representatives, Hansard, 14 October 1992, p. 2145.
- See Seacare Authority, Review of Seacare Scheme Legislation
2002. Issues Paper, 25 March 2002.
- By the Safety, Rehabilitation and Compensation and Other
Legislation Amendment Act 2001.
(accessed 6 November 2002).
(accessed 6 November 2002).
- The relevant seafarer s legislation refers in various places to
the Department, its officers and Secretary. By virtue of the
Acts Interpretation Act 1901 and the Administrative
Arrangements Order the relevant Department is the Department of
Employment and Workplace Relations.
- This provision is needed for clarity because paragraph 34AB(b)
of the Acts Interpretation Act 1901 otherwise provides
that the power of delegation cannot, itself, be delegated. The
Where an Act confers power on a person or body
(in this section called the authority) to delegate a
function or power:
(b) the powers that may be delegated do not
include that power to delegate.
- For instance, subsection 14(1) of the Seafarers
Rehabilitation and Compensation Levy Collection Act 1992
enables the Secretary to issue an identity card to an authorised
person. Item 12 will enable the CEO of Comcare to
exercise this power instead of the Secretary.
8 November 2002
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