Bills Digest No. 91, 2016–17
PDF version [892KB]
Paula Pyburne
Law and Bills Digest Section
27 April 2017
Contents
The Bills Digest at a glance
Coverage
Entitlements
Workplace health and safety
Levies Bills
Purpose of the Bill
Structure of the Bills
Background
About the Seacare scheme
Seacare jurisdictional coverage
Legislative amendment
Effectiveness of the Seacare scheme
Table 1: employee numbers, full-time
equivalent (FTE) employees and hours worked
Table 2: claims data
Table 3: rejection and disputation
rate
Seacare review
Consultation
Committee consideration
Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Australian Labor Party
Australian Greens
Position of major interest groups
Union groups
Employer groups
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Seafarers and Other Legislation
Amendment Bill
Financial implications
Key issue—coverage
Prescribed vessel
Stakeholder comment
Intra‑state voyages or tasks
Constitutional conditions
Application to opt-in
Stakeholder comment
The opt‑in declaration
Suspension or revocation of opt‑in
declaration
Exemption of employment
Scrutiny of Bills Committee
Suspension or revocation of exemption
Review of decisions
Scrutiny of Bills Committee
Stakeholder comments about coverage
Key issue—changes to entitlements
Definition of catastrophic injury
Commencement and application
Definitions of injury and disease
Definition of injury
Definition of disease
Journey claims
Statement of Compatibility with Human
Rights
Stakeholder comment
Compensation for hearing loss
Aligning the cut-off provisions with
the age pension
Table 4: age rules
Redemption of compensation
Current legislation
Key issue—updating liability
provisions
Common law claims against third
parties
Comcare and the Seacare Advisory
Group
Seacare Advisory Group
Functions
Members
Reconsideration of decisions
Key issue—compulsory insurance
Implementing the Maritime Labour
Convention
Key provisions
Scrutiny of Bills Committee
Commencement
Default fund
Existing fund
Administration
Basis of a special account
Purpose of the
special account
Other provisions
Amending the Work Health and Safety
Act
Stakeholder comment
Amending the SRC Act
Catastrophic
injuries
Commencement and application
Aligning pension age
Amending the Offshore Petroleum and
Greenhouse Gas Storage Act
Levies Bills
Repeals
Seafarers Safety and Compensation
Levies Bill
Commencement
Financial implications
Key provisions
Insurance levy
Cost recovery levy
Seafarers Safety and Compensation
Levies Collection Bill
Commencement
Financial implications
Key provisions
Key issues—cost to business
Concluding comments
Date introduced: 13
October 2016
House: House of
Representatives
Portfolio: Employment
Commencement: various
dates as set out in the body of this Bills Digest
Links: The links to the Seafarers
and Other Legislation Amendment Bill 2016, its Explanatory Memorandum and
second reading speech can be found on the Bill’s home page.
The links to the Seafarers Safety and Compensation Levies Bill 2016, its Explanatory
Memorandum and second reading speech can be found on the Bill’s home page.
The links to the Seafarers
Safety and Compensation Levies Collection Bill 2016, its Explanatory
Memorandum and second reading speech can be found on the Bill’s home page.
All three Bills can be found through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at April 2017.
The Bills Digest at a glance
This Bills Digest relates to three
Bills.
Coverage
The primary change proposed in the Seafarers and Other
Legislation Amendment Bill 2016 is in relation to the coverage of the Seacare scheme.
The changes, which are intended to clarify who is covered by the scheme, are
made in response to the decision of the Full Court of the Federal Court in Samson
Maritime Pty Ltd v Aucote. The effect of the decision was to expand the
coverage of the Seafarers
Rehabilitation and Compensation Act 1992, and therefore the Seacare
scheme, to seafarers who were employed on a ship registered in Australia by an
Australian trading corporation.[1]
The Seafarers and Other Legislation Amendment Bill
provides a new two-tiered test so that the Seafarers Rehabilitation and
Compensation Act applies to the employment of an employee on a prescribed
vessel provided:
- the
vessel is not used wholly or predominantly for intra-State voyages or tasks and
- any
of the specified constitutional conditions are satisfied.
Entitlements
In addition, the Seafarers and Other Legislation Amendment
Bill 2016 makes changes to entitlements by amending the Seafarers
Rehabilitation and Compensation 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 per cent to five per cent
- 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’ rather than
‘as a result of reasonable disciplinary action’.
Workplace
health and safety
The Seafarers and Other Legislation Amendment Bill 2016
repeals the Occupational
Health and Safety (Maritime Industry) Act 1993 and extends the
operation of the Work
Health and Safety Act 2011 so that it applies to the Seacare scheme.
Levies
Bills
The other two Bills in the package are the Seafarers
Safety and Compensation Levies Bill 2016 and the Seafarers Safety and
Compensation Levies Collection Bill 2016 which replace the existing statutes
for the imposition and collection of levies.
The Seafarers Safety and Compensation Levies Bill 2016
imposes two levies—an insurance levy and a cost recovery levy on seafarer berths.
The seafarers insurance levy will support a safety net
fund for seafarers where the employer cannot meet its workers compensation
obligations because of financial circumstances. The seafarers cost recovery
levy is intended to recover the costs of the Safety, Rehabilitation and
Compensation Commission, Comcare and the Australian Maritime Safety Authority
in performing their respective regulatory functions in relation to the Seacare
scheme where these costs are not readily attributable to a specific
organisation or individual.
The Seafarers Safety and Compensation Levies Collection
Bill 2016 provides for the collection of the proposed levies.
Purpose of
the Bill
This Bills Digest relates to three Bills.
The purpose of the Seafarers and Other Legislation
Amendment Bill 2016 (Seafarers Legislation Bill) is to amend the Seafarers
Rehabilitation and Compensation Act 1992 (Seafarers Act) to
establish a two-tier test to determine who is covered by the Seacare scheme, to
update workers’ compensation and work health and safety arrangements which are
currently in place and to give effect to recent changes to the Maritime
Labour Convention.[2]
The purpose of Seafarers Safety and Compensation Levies
Bill 2016 (Levies Bill) is to impose two levies—being an insurance levy and a
cost recovery levy on seafarer berths. The Seafarers Safety and Compensation
Levies Collection Bill 2016 (Levies Collection Bill) sets out the procedures
associated with the collection of those levies.
Structure
of the Bills
The Seafarers Legislation Bill contains three Schedules.
Schedule 1 repeals the Financial Management
and Accountability (Establishment of Special Account) Determination 2002/06;
the Occupational
Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act); the
Seafarers
Rehabilitation and Compensation Levy Act 1992 (Levy Act); and
the Seafarers
Rehabilitation and Compensation Levy Collection Act 1992 (Levy
Collection Act).
Schedule 2 comprises five Parts:
- Part
1 amends the Seafarers Act to set out new rules about the compensation
payable for household services and attendant care services where an employee
has suffered a catastrophic injury
- Part
2 amends the Seafarers Act to implement amendments to the Maritime
Labour Convention relating to insurance obligations of employers of
seafarers
- Part
3 amends the Offshore
Petroleum and Greenhouse Gas Storage Act 2006; the Safety
Rehabilitation and Compensation Act 1988 (SRC Act); the Seafarers
Act and the Work
Health and Safety Act 2011 (WHS Act)
- Part
4 amends the SRC Act to insert rules about the compensation payable for
household services and attendant care services where an employee has suffered a
catastrophic injury in equivalent terms to those which are to be inserted into
the Seafarers Act in Part 1
- Part
5 amends the Work Health and Safety Act so that it will apply to the Seacare
scheme (following the repeal of the OHS(MI) Act).
Schedule 3 contains application and transitional
provisions to a number of statutes which are relevant to the changes set out
above.
The Levies Bill comprises four Parts. Part 2 establishes
the seafarers insurance levy, whilst Part 3 establishes the seafarers cost
recovery levy. The Levies Collection Bill does not contain separate Parts.
Background
About the
Seacare scheme
‘Seacare is a national scheme of occupational health and
safety (OHS), rehabilitation and workers' compensation arrangements which
applies to defined seafaring employees and—in relation to OHS—defined third
parties.’[3]
Claims for workers’ compensation are managed by the employee’s employer. This
management responsibility is often outsourced to an employer’s insurer or third
party with claims management expertise. Premium income from these insurance
policies does not contribute to the cost of scheme services, unlike
arrangements in centrally-managed schemes.
The Seacare scheme incorporates the Seafarers Safety Net
Fund (the Fund) which is a ‘safety net employer’ to stand in place of an
employer where there is no employer (usually due to that employer going out of
business) against whom a seafarer can make compensation claim. In such circumstances,
the Fund determines any claim and may accept liability for any eligible
benefits. Where there was a workers’ compensation insurance policy covering the
employee under the Seafarers Act, the Fund has the same rights as the
insured employer to recover costs from that insurer.
The Fund is maintained through the collection of monies
from scheme employers under the Levy Act and the Levy Collection Act.
The Minister determines, in consultation with relevant stakeholders, the
appropriate rate of levy payable by employers before making a recommendation to
the Governor-General that a regulation be made prescribing the rate. The
current levy rate of $15 per berth took effect on 1 April 2008.[4]
The Seacare scheme is overseen by the Seafarers Safety,
Rehabilitation and Compensation Authority (the Seacare Authority) which
comprises an independent Chairperson and Deputy Chairperson, the Chief
Executive Officer of the Australian Maritime Safety Authority, two employer
representatives and two employee representatives.[5]
Seacare
jurisdictional coverage
In 1975, the High Court upheld the validity of the Seas and Submerged
Lands Act 1973 (SSL Act) in which the Commonwealth asserted
sovereignty over the territorial sea, including the seabed beneath the three
nautical miles of waters from the low tide mark commonly described as coastal
waters.[6]
Following this decision, the Commonwealth and the states
negotiated the Offshore
Constitutional Settlement (OCS),[7]
in which they agreed to a division of their offshore rights and
responsibilities. In accordance with the OCS, the Commonwealth legislated to
confer jurisdiction on the states and the Northern Territory over the three
nautical miles of the territorial sea adjacent to their respective coastlines.
This had the effect of splitting the responsibility for covering seafarers for
workers’ compensation and OHS purposes between the states for intrastate
voyages and the Commonwealth for most other voyages.
Initially, Seacare scheme coverage was defined by
reference to Part II of the Navigation Act 1912.
However, the decision to repeal and replace the Navigation Act with a
more modern statute[8]
created the impetus for the Seacare Authority to release a discussion paper
about Seacare jurisdictional coverage.[9]
According to Aon Risk Services Australia, the key
challenge faced by employers operating in the Seacare scheme is determining
whether it applies to their workers. The reasons for this are:
- there
is a requirement to reference multiple pieces of legislation (including repealed
legislation) and regulatory declarations
- the
composition (that is, Australian resident versus non-resident) of the vessel’s
crew needs to be known and this information is not always available to
employers who are supplying only some of the crew—for example, catering staff
only
- when
assessing whether the vessel is engaged in interstate or intrastate trade, the Seafarers
Act is silent on whether this relates to only the voyage on which the
injury occurred or the vessel’s trading patterns more generally, and if so over
what period of time
- many
enterprise agreements stipulate that the scheme is to apply to workers when
this is at odds with the legislation (for example on vessels engaged in
intrastate trade)
- recent
legal precedents have dramatically shifted the scope of the scheme's coverage
beyond what was commonly understood by industry.[10]
The coverage provisions of the Seafarers Act have
been described as ‘not readily understood by maritime operators, employers and
employees’.[11]
Legislative
amendment
The legal precedents to which Aon Risk Services Australia
alluded were the decision of the Full Court of the Federal Court in Samson
Maritime Pty Ltd v Aucote[12]
on appeal from the decision of the Administrative Appeals Tribunal (the AAT) in
Aucote and Samson Maritime Pty Ltd.[13]
The practical effect of those decisions was to expand the
coverage of the Seafarers Act, and therefore the Seacare scheme, to seafarers
who were employed on prescribed ships which were registered in
Australia and were owned by an Australian constitutional corporation.[14]
This included those engaged in intrastate trade—provided that they satisfied
the definition of prescribed ship.[15]
This may, for example, have included those Australian-owned vessels working in
the offshore oil and gas industries, harbour tugs, ferries and small work boats
of all kinds engaged solely in the waters of one state.
In response, the Government enacted the Seafarers
Rehabilitation and Compensation and Other Legislative Amendments Act 2015
on 14 May 2015 to bring about a return of the status quo that existed before
the decisions and to put beyond doubt that the Seacare Scheme does not cover
injuries sustained during intrastate voyages from the commencement of the
scheme until 26 May 2015.[16]
As an interim measure, on 24 March 2015, the Seacare
Authority granted exemptions from coverage by the Seafarers Act.[17]
The exemptions were reissued for a further period, effective from 21 April
2016.[18]
The Minister for Employment also made declarations under
the OHS(MI) Act
and the Seafarers
Act that certain ships were not prescribed for the purposes of those
Acts. These declarations are due to sunset two years after they took effect—that
is, on 23 June 2017.
The exemptions and declarations together ensure that these
ships are not covered by the Seacare scheme and are instead covered by state
legislation, as had been understood to be the case prior to the Samson v
Aucote decision.[19]
The Seafarers Legislation Bill responds to these ongoing
concerns about the complexity of coverage of the Seacare scheme by establishing
a new two-tiered coverage test. (See discussion below under the heading ‘Key
issue—coverage’.)
Effectiveness
of the Seacare scheme
The coverage of the Seacare scheme has been diminishing
over time. According to the Explanatory Memorandum, ‘as of July 2015, the scheme
was known to apply to 336 vessels and 6,863 employees’.[20]
Table 1: employee numbers, full-time equivalent (FTE) employees and hours worked
|
2011–12 |
2012–13 |
2013–14 |
2014–15 |
2015–16 |
Total employees |
7,942 |
8,486 |
7,541 |
6,960 |
5,984 |
Total FTE |
5,416 |
5,273 |
4,727 |
4,410 |
3,999 |
Total hours worked |
22,684,824 |
22,965,466 |
21,315,138 |
19,495,844 |
17,924,092 |
Source: Seacare Authority, 2015–16
compendium of seacare statistics, Seacare Authority, Canberra p. 6.
The table below provides statistical information about the
claims lodged and claims accepted under the Seacare scheme.
Table 2: claims data
|
2011–12 |
2012–13 |
2013–14 |
2014–15 |
2015–16 |
Claims lodged |
|
|
|
|
|
Claims accepted |
243 |
225 |
177 |
160 |
97 |
Claims rejected |
30 |
13 |
16 |
10 |
6 |
Claims pending |
1 |
3 |
7 |
12 |
10 |
Total |
274 |
241 |
200 |
182 |
113 |
Claims accepted |
|
|
|
|
|
Claims accepted—on duty |
229 |
204 |
168 |
153 |
88 |
Claims accepted—off duty |
7 |
13 |
6 |
6 |
5 |
Journey claims |
4 |
4 |
3 |
1 |
3 |
Claims while studying |
0 |
0 |
0 |
0 |
1 |
Property claims |
0 |
0 |
0 |
0 |
0 |
Other |
3 |
4 |
0 |
0 |
0 |
Total |
243 |
225 |
117 |
160 |
97 |
Source: Seacare Authority, 2015–16
compendium of Seacare statistics, Seacare Authority, 2016, p. 18.
Under subsection 78(4) of the Seafarers Act an
employer must, upon receipt of a written request from an employee for a
reconsideration of a claim determination, arrange for an industry panel or a
Comcare officer to assist in reconsidering the determination. This review is
the first stage of the review process. The Administrative Appeals Tribunal
(AAT) is the second tier of review for disputed claims.
Given the low claims rate, the Seacare scheme has a
surprisingly high disputation rate as the table below indicates.
Table 3: rejection and disputation rate
|
2011–12 |
2012–13 |
2013–14 |
2014–15 |
2015–16 |
Claims lodged |
274 |
241 |
200 |
182 |
113 |
Claims rejected |
30 |
13 |
16 |
10 |
6 |
Rejection rate (%) |
11.0 |
5.4 |
8.0 |
5.5 |
5.3 |
AAT applications lodged |
50 |
64 |
85 |
83 |
61 |
Disputation rate (%) |
18.3 |
26.6 |
42.5 |
45.6 |
54.0 |
Source: Seacare Authority, 2015–16
compendium of Seacare statistics, Seacare Authority, p. 21.
Seacare
review
On 16 October 2012, the Minister for Employment and
Workplace Relations, Bill Shorten, announced a review of the Seacare scheme
stating that the aim of the review was to ‘modernise the federal seafarers
workers’ compensation scheme, which has not been reviewed since it was
established in 1992, to ensure it is working effectively and efficiently for
Australia’s seafarers’.[21]
The report of the review (Seacare review) was published on 20 May 2013.[22]
According to Mr Shorten:
The legislation underpinning the Seacare Scheme has not kept
pace with changes in harmonisation of work health and safety laws, workers’
compensation reforms or maritime industry reforms.
This has made the scheme complex and resulted in uncertainties
in determining which vessels are covered under the Scheme and which are covered
under the various state or territory schemes.
The review conducted by Mr Robin Stewart-Crompton emphasises
the complex legislative and administrative structure of the scheme and its
relatively poor performance compared to similar schemes.[23]
In carrying out the Seacare review, Mr Stewart-Crompton
had access to a 2005 report by Ernst & Young of an evaluation of the
Seacare scheme which has not been published and the recommendations made by
Peter Hanks QC[24]
arising from his review of the SRC Act (Hanks report).[25]
Many of the amendments in the Seafarers Legislation Bill reflect the
recommendations of the Seacare review.
The Government attempted to implement many of the
recommendations of the Hanks report when it introduced the Safety,
Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill
2015 (2015 Bill) into the House of Representatives on 25 March 2015.[26]
However, the Bill lapsed when the Parliament was prorogued in April 2016. The
Seafarers Legislation Bill contains some measures which were also contained in
the 2015 Bill. Those measures are discussed as key provisions in the body of
this Bills Digest.
Consultation
According to the Regulation Impact Statement (RIS) for the
Seafarers Legislation Bill:
The Department held five one-day workshop consultations with
stakeholders between May and August 2015 to discuss possible reforms to the
Seacare scheme. Workshops 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).[27]
On 21 December 2015, the Department of Employment released
a consultation RIS outlining proposed reforms to the Seacare scheme for public
comment.[28]
Although the RIS indicates that there were 15 submissions, at the time of
writing this Bills Digest only ten are available on the Department of Employment
website.[29]
The final form of the RIS is contained in the Explanatory
Memorandum to the Seafarers Legislation Bill. It sets out three possible
options for change:
- preserve
the status quo
- abolish
the Seacare scheme
- reform
the Seacare scheme.
The first of those options was not considered to be
feasible on the grounds that the ongoing lack of clarity over the coverage of
the Seacare scheme presents significant issues for Seacare employers and
employees and other maritime industry participants.[30]
The second option—to abolish the scheme—was not the preferred option even
though it was acknowledged that it could potentially save costs for the
government. However, adopting the second option would take time to implement
and issues requiring urgent action would not be addressed in the meantime.[31]
The Seafarers Legislation Bill represents the third option. The rationale for
adopting this option is that it would provide much-needed certainty to maritime
industry employers and employees over the coverage of the Seacare scheme.[32]
Committee
consideration
Selection
of Bills Committee
On 10 November 2016, the Senate referred an
inquiry into the package of Bills to the Education and Employment Legislation
Committee (Education and Employment Committee) for inquiry and report by 7 February 2017.[33] The majority report of the Education and Employment Committee was to
the effect that the package of Bills should be passed.[34] The views expressed in
the dissenting reports by the Australian Labor Party (ALP) Senators and the Australian
Greens (Greens) Senators are set out below.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
published its comments in relation to the Bills on 9 November 2016.[35]
The Committee’s comments and the Minister’s subsequent response to the
Committee’s written request for further information are set out under the
heading ‘Key issues and provisions’ below.
Policy
position of non-government parties/independents
Australian
Labor Party
The ALP Senators on the Education and
Employment Committee dissented from the majority, stating that they were
opposed to the package of Bills which would ‘radically alter’ the Seacare
scheme. The basis for the dissent was:
... the Bill would hinder injured seafarers’ ability
to return to work after an injury. The Bill would also result in more confusion
over the scheme's coverage, leading to even more costly, time-consuming and
unnecessary litigation. Labor is very concerned about this development.[36]
Australian
Greens
Similarly, the Greens Senators on the Education
and Employment Committee did not support the Bills. Whilst the Greens stated
that they ‘support the appropriate integration of the maritime industry into
the broader workplace health and safety regime’ they considered:
... the Seafarers Safety and Compensation Bills
package proposed by the government has not been developed with proper
consultation with industry, in particular maritime unions, and will have
significant detrimental consequences for workers in the maritime sector.[37]
Position of
major interest groups
Union
groups
The Australian Council of Trade Unions (ACTU) expressed
concern that the Australian Government ‘did not develop any of the Bills
through consultation with the ACTU and maritime unions’ and specifically
opposed some of the proposed amendments.[38]
The Maritime Union of Australia (MUA) strongly opposes the
Seafarers Legislation Bill. In summary, the MUA considers that it:
- attacks
maritime workers’ ability to get proper compensation for injuries by
introducing a new coverage clause that does not include many vessels currently
covered by Seacare
- as
a result many seafarers will be pushed into inferior state and territory
compensation schemes in a state they do not reside in
- relevant
vessels will be pushed to state OHS inspectorates which are not as
well-equipped to carry out inspections as AMSA
- a
significant reduction in vessel numbers would threaten the future survival of
the national Seacare scheme
- the
proposed opt-in mechanism for Seacare is restricted to prescribed vessels
and this term excludes categories of vessels currently covered by the scheme.[39]
Employer
groups
The submission by Maritime Industry Australia Ltd (MIAL)
(formerly known as the Australian Shipowners Association) to the Government's
consultation paper refers to the three options that were presented. It strongly
submitted that option 1 (preserve the status quo) was ‘untenable’ and that
option 3 (reform the Seacare scheme) would ‘not achieve the outcome of
maintaining a similar jurisdictional footprint’.[40]
It opted for option 2—that is, it considered that the best option for industry
is the abolition of the Seacare scheme, with work health and safety regulation
and workers’ compensation coverage reverting to the state and territory
schemes.[41]
Employer group Australian Mines and Metals Association
(AMMA) also preferred option 2 stating that the abolition of the Seacare scheme
would in no way diminish coverage and protections for maritime employees, ‘who
would be clearly covered by state and territory workers compensation and WHS
schemes as are other employees throughout Australia’.[42]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[43]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights had no
comment to make in relation to the Bills.[44]
Seafarers
and Other Legislation Amendment Bill
Financial
implications
According the Explanatory Memorandum to the Seafarers
Legislation Bill its financial impact will be nil.[45]
Key
issue—coverage
As stated above, the effect of the decision in Aucote
was to expand the coverage of the Seafarers Act, and therefore the
Seacare scheme, to seafarers who were employed on prescribed ships
which were registered in Australia and owned by an Australian constitutional
corporation.[46]
This included those engaged in intrastate trade—including those Australian
owned vessels working in the offshore oil and gas industries, harbour tugs,
ferries and small work boats of all kinds engaged solely in the waters of one
state. This was a much wider coverage than was originally intended.
Item 84 of Schedule 2 to the Seafarers Legislation
Bill inserts proposed Part 1A—Coverage into the Seafarers Act. Proposed
Part 1A contains proposed sections 25A–25S.
Quick guide to Part 1A
The Seafarers Act applies to the employment of an
employee on a prescribed vessel if:
- the
vessel is not used wholly or predominantly for intrastate voyages or
tasks and
- a
constitutional condition is satisfied.
The Seafarers Act applies to the employment of an
employee on a prescribed vessel if:
- the
vessel is the subject of an opt-in declaration and
- a
constitutional condition is satisfied.
The Seafarers Act applies to the employment of an
employee on a vessel if:
- the
vessel is the subject of a transitional declaration and
- a
constitutional condition is satisfied.
The Safety, Rehabilitation and Compensation Commission (the
Commission) may exempt the employment of any or all of the employees on a
particular vessel from application of the Seafarers Act. |
Within new Part 1A is a two tier test so that the Seafarers
Act applies to the employment of an employee on a prescribed vessel
and to the employment of a trainee who is undergoing a training course in
connection with, or for the purpose of, employment by the employer on a prescribed
vessel provided:
- first,
the vessel is not used wholly or predominantly for intra‑State
voyages or tasks and
- second,
any of the constitutional conditions are satisfied.[47]
Prescribed
vessel
Currently the Seafarers Act applies to a prescribed
ship being a ship prescribed for the purposes of the Navigation Act
1912, which are generally Australian ships or foreign ships with Australian
crews. The Seafarers Legislation Bill repeals this term.[48]
In its place item 62 of the Seafarers Legislation inserts the term prescribed
vessel which is:[49]
- a
vessel registered, or required to be registered, under the Shipping
Registration Act 1981
- a
foreign vessel of which the majority of the crew are residents of Australia or
- a
vessel that is declared to be a prescribed vessel by legislative rules.[50]
The term specifically excludes a recreational vessel,[51]
an inland waterways vessel,[52]
a fishing vessel and a fishing fleet support vessel,[53]
an offshore floating storage or production unit[54]
and an offshore industry mobile unit,[55]
a government vessel[56]
a local tourism vessel[57]
and any a vessel that is declared not to be a prescribed vessel by legislative
rules.[58]
This means that the coverage of the Seafarers Act is significantly
narrowed from the broad coverage which was extended due to the decision in Aucote.
Stakeholder
comment
Of concern to the MUA is the express exclusion of certain
offshore vessels from the definition of prescribed vessel—for
example, a floating production storage and offloading unit, or an offshore
industry mobile unit. The MUA considers that this leaves ‘an unacceptable gap
in coverage’. In addition, the MUA believes that there is an inconsistency
between the express exclusion of such vessels and the opt-in provisions (set
out below). This is because only prescribed vessels are entitled to opt-in.[59]
Intra‑state
voyages or tasks
Under the Seafarers Legislation Bill, employees and
trainees on a vessel that is used wholly or predominantly for intra‑State
voyages or tasks are not covered by the Seacare scheme. The Seafarers
Legislation Bill defines an intra‑State voyage or task in
two ways.[60]
First, it is a voyage, or other task, that is
wholly within the designated waters of a particular state.[61]
A voyage is taken to be wholly within the designated waters of
the state if a vessel is proceeding on a voyage between two places in a
particular state and in the course of the voyage, the vessel is present in
waters beyond the outer limits of the designated waters of the state and the
presence of the vessel in waters beyond those outer limits is because it is not
reasonably practicable for the vessel to remain within the designated waters of
the state.[62]
Second, it is a voyage, or other task, that is
wholly within the designated waters of the Northern Territory. A voyage
is taken to be wholly within the designated waters of the Northern Territory if
the vessel is proceeding on a voyage between two places in the Northern
Territory and in the course of the voyage, the vessel is present in waters
beyond the outer limits of the designated waters of the Northern Territory and the
presence of the vessel in waters beyond those outer limits is because it is not
reasonably practicable for the vessel to remain within the designated waters of
the Northern Territory.[63]
Constitutional
conditions
As stated above, only one of the constitutional conditions
listed below needs to be met:
- either
or both the employer and the operator of the vessel are constitutional
corporations
- a
constitutional corporation holds more than 50% of the legal ownership of the
vessel or a constitutional corporation holds more than 50% of the beneficial
ownership of the vessel or two or more constitutional corporations hold, in
total, more than 50% of the legal ownership of the vessel or two or more
constitutional corporations hold, in total, more than 50% of the beneficial
ownership of the vessel—however, these conditions do not apply to a
constitutional corporation that has no involvement, or negligible involvement,
in the overall general control and management of the vessel
- the
vessel is engaged in trade or commerce between Australia and places outside
Australia or among the states, or within a territory, between a state and a territory
or between two territories
- the
vessel is not within the limits of a state or territory and
- the
vessel is within the limits of a territory.[64]
Application to opt-in
Under the Seafarers Legislation
Bill an employee or a trainee on a prescribed vessel will
be covered by the Seacare scheme if the vessel is the subject of an opt‑in
declaration which covers the employee or trainee, and any of the constitutional
conditions is satisfied.[65]
The owner or operator of a vessel or an
employer may apply to the Commission for an opt‑in declaration
that relates to a prescribed vessel and covers the employment on the vessel
of all employees, a specified group or groups of employees or a specified
employee or employees.[66]
The application must be in the manner and form specified
in the Seafarers Legislation Bill—in particular it must nominate a number of
days as the duration of the declaration, being no more than 1,095 (equivalent
to three years).[67]
The Seafarers Legislation Bill provides that an application may be made for a
renewal of an opt-in declaration.[68]
In addition, the application may require the applicant to
state that reasonable steps have been taken to inform each registered
organisation (if any) that is entitled to represent the interests of employees
employed on the vessel and the employees employed on the vessel of the application.[69]
Stakeholder
comment
The Australian Maritime Officers Union (AMOU) is ‘very
concerned’ about the opt-in provisions in proposed section 25E on the
grounds that the requirement to only take reasonable steps to inform affected
employees and their representatives of the application is insufficient and
contrary to the principles of procedural fairness. Citing the example of the
requirements of an employer making an enterprise agreement to comply with a
number of mandatory procedural steps including giving employees notice, the
AMOU submits that a copy of the application must be given to the affected
employees and their union.[70]
The opt‑in declaration
Where an application for an opt-in declaration has been
made, the Commission must either:
- declare
in writing that the vessel is an opt‑in vessel and state which employees
are covered by the declaration or
- refuse
to make such a declaration.[71]
In making its decision, the Commission must have regard to
any matters prescribed by the legislative rules and any other matters that the Commission
considers relevant.[72]
In addition, the Commission must not make an opt-in declaration if it would be
inconsistent with an obligation of Australia under an international agreement.[73]
Unless it relates to a renewal of an earlier declaration,
an opt‑in declaration comes into force on the day specified in the
declaration and remains in force for the number of days specified in the
declaration.[74]
If the application is for a renewal of a declaration, the opt‑in
declaration comes into force immediately after the expiry of the earlier declaration.[75]
The Commission must give a copy of an opt‑in
declaration to the owner and operator of the prescribed vessel to which the
declaration relates and to the employer or employers of the employees covered
by the declaration. In addition, the Commission must publish the declaration on
the Commission’s website.[76]
If the Commission decides to refuse to make an opt‑in
declaration, it must give written notice of that decision to the applicant.[77]
Suspension or revocation of opt‑in declaration
The Commission may suspend an opt-in declaration for a
specified period or revoke it, by writing.[78]
It may exercise this power on its own initiative or on a written application in
the approved form by either the owner or operator of the prescribed vessel to
which the declaration relates or the employer of any of the employees covered
by the declaration.[79]
In making a decision to suspend or revoke an opt‑in
declaration, the Commission must have regard to any matters prescribed by the
legislative rules, whether any conditions of an opt-in declaration have been contravened
and any other matters that the Commission considers relevant.[80]
In addition, the Commission must publish a notice on its website setting out a
draft of the instrument of suspension or revocation and the reasons for it. The
Commission must invite persons to make submissions about the draft instrument
within seven days after the notice is published and must consider any
submissions received within that period.[81]
The Commission must publish the final form of any instrument
of suspension or revocation on the Commission’s website.[82]
Where the Commission decides not to suspend or revoke the declaration it must
give written notice of the decision to the applicant.[83]
Exemption
of employment
The Commission may make a written instrument exempting the
employment of all employees, a specified group or groups of employees, or a
specified employee or employees on a particular vessel from the application of
the Seafarers Act.[84]
The Commission may make an instrument of exemption on its
own initiative or based on an application in the approved form by the owner or
operator of the vessel to which the exemption relates or the employer of the
employee or employees covered by the proposed exemption.[85]
The process for the Commission in determining an
application for exemption is in similar terms to the process for determining an
application for an opt-in declaration, that is:
- in
making its decision, the Commission must have regard to any matters prescribed
by the legislative rules and any other matters it considers relevant[86]
- the
Commission must not make a decision to make an exemption if it would be
inconsistent with an obligation of Australia under an international agreement[87]
- an
exemption may be subject to conditions[88]
- an
instrument of exemption made on the Commission’s own initiative remains in
force for one year or a shorter period specified in the instrument[89]—although
there is scope for a person to apply for a renewal[90]
- before
deciding whether to make an instrument of exemption the Commission must engage
in a consultation process equivalent to that required for making an opt-in
declaration[91]
- within
14 days after making an instrument of exemption the Commission must give a copy
of the instrument of exemption to the owner and the operator of the vessel, the
employer of any of the employees covered by the exemption and each person who
made a submission relating to the exemption.[92]
Scrutiny of Bills
Committee
The Scrutiny of Bills Committee drew attention to the
exemptions provided by proposed section 25M which, it says:
... is a broad discretionary power with no legislative guidance
on how such decisions would be made. The explanatory memorandum does not
explain why this provision is considered necessary and does not explain what
type of matters the Commission would take into account in making such an
instrument. There is also no requirement in the Bill that legislative rules
must be made setting out the matters the Commission must have regard to in
exercising this discretionary power.[93]
As a result, the Scrutiny of Bills Committee sought the
Minister's advice as to why the exemption power is necessary.[94]
The Minister's response to the Scrutiny of Bills Committee
was to the effect:
... proposed section 25M mirrors the existing absolute
discretion of the Seacare Authority to declare vessels exempt from the scheme ...
[and that] ... the Seacare Authority has issued exemption guidelines (which are
not a legislative instrument) to provide assistance to the industry on when an
exemption may be appropriate and the factors to be taken into account by the
Seacare Authority.[95]
The Scrutiny of Bills Committee noted the Minister's
response but stated:
The fact that a provision already exists in legislation does
not address the Committee's scrutiny concerns regarding the provision in this
Bill. The Committee's long-standing preference is that there be guidance in the
primary legislation as to how broad discretionary powers are to be exercised.
The Committee considers that the power to exempt a vessel from the operation of
the federal legislative framework regarding seafarers is a significant matter.
While the SRCC must have regard to the matters prescribed by the legislative
rules, there is no legal requirement that rules be in place before the
provisions in the Bill become operative.[96]
Suspension or revocation of exemption
Proposed section 25Q of the Seafarers Act
provides that the Commission may suspend an instrument of exemption for a
specified period or revoke it, by writing.
The Commission may exercise the power to suspend or revoke
an instrument of exemption on its own initiative or on application by the owner
or operator of the vessel or the employer of any of the employees covered by
the exemption.[97]
The process before making a decision to suspend or revoke an instrument of
exemption requires the Commission to have regard to any matters prescribed by
the legislative rules, any contraventions of the conditions to which the
instrument is subject and any other matters the Commission considers relevant. The
Seafarers Legislation Bill sets out consultation, notification and publication
requirements in similar terms to those relating to opt-in declarations.[98]
Review of decisions
Proposed section 25R allows applications to be made
to the Administrative Appeals Tribunal (AAT) for review of a decision of the
Commission to:
- make
an opt-in declaration or refuse to make such a declaration
- make
an opt-in declaration subject to conditions and
- suspend
or revoke an opt-in declaration[99]
- make
an instrument of exemption or refuse to make such an instrument
- make
an instrument of exemption subject to conditions and
- suspend
or revoke an instrument of exemption.[100]
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee commented on proposed
section 25R which provides that an application for review of a decision by
the Commission to make an instrument of exemption (under proposed section 25M)
can be made to the AAT. The Committee was concerned:
... an application can only be made if the decision to make an
instrument of exemption was made following an application to the Commission by
the owner of the vessel of the employer. If the Commission on its own
initiative decides to make the exemption there is no right to seek merits
review of that decision.[101]
Accordingly, the Scrutiny of Bills Committee has sought
the Minister’s advice as to why the right to seek merits review of the
Commission's decision to make an instrument exempting the employment of persons
on a particular vessel is so restricted.[102]
The Minister responded to the inquiry stating that ‘exemptions
are currently issued by the Seacare Authority and the decision is not
reviewable by the AAT’ and that such a review would likely be time-consuming
and costly.[103]
The Scrutiny of Bills Committee did not consider that time
taken to conduct a review or the cost of the review were sufficient to exclude
the possibility of merits review.[104]
That being the case the Scrutiny of Bills Committee has drawn its concerns to
the attention of Senators.
Stakeholder
comments about coverage
The Australian Maritime Officers Union contends that the
proposed amendments ‘will not somehow make clear or clarify coverage; but
rather are intended to shrink the number of vessels covered by the scheme’ and
that this ‘will result in increased disputation and the demise of the Seacare
scheme’.[105]
In its supplementary submission to the
Senate Education and Employment Committee the MUA agrees, stating:
There were 219 vessels in the Seacare scheme
in 2015–16 ...
While the government has maintained that the
coverage of the scheme will remain essentially the same ... the proposed coverage provisions will result in a significant
reduction in the number of vessels in the scheme. We are concerned that any
reduction in the number of vessels in the Seacare scheme will make it unsustainable.
We believe that 68 vessels (31%) that are
currently covered are likely not to be included in the new coverage provisions
of the Seacare scheme. There are only 45 vessels that we can say with
confidence will remain a part of the scheme.[106]
Key issue—changes to entitlements
Definition
of catastrophic injury
Item 1 of Part 1 in Schedule 2 to the Seafarers
Legislation Bill amends the Seafarers Act to insert a new definition of catastrophic
injury—being an injury where the conditions specified in the
legislative rules are satisfied.[107]
Item 6 inserts proposed section 144 into the Seafarers Act
to empower the Minister, by legislative instrument, to make such legislative
rules.[108]
Section 43 of the Seafarers Act currently provides
for the payment of compensation for household services and attendant care
services. The amendments in items 2–4 operate so as to distinguish
between those employees who have suffered a catastrophic injury, and those who
have not, in relation to the provision of household and attendant care services.
Item 4 inserts proposed section 43A into the
Seafarers Act to set out the conditions under which compensation for
household services and attendant care services can be paid in respect of catastrophic
injury. If an employee obtains household services and/or attendant care
services as a result of a catastrophic injury and those services are reasonably
required by the employee the compensation payable is such amount per week as is
considered reasonable in the circumstances.[109]
The Seafarers Legislation Bill contains a list of the things that must be taken
into account when determining whether household services are reasonably
required. This includes but is not limited to:
- the
number of persons living with the employee as members of his or her household,
their ages and their need for household services and
- the
extent to which the persons living with the employee as members of his or her
household, or any other members of the employee’s family, might reasonably be
expected to provide household services for themselves and for the employee
after the catastrophic injury.[110]
This is consistent with the view of the Federal Court in Lander
v Comcare in which the Court considered the extent to which members of an
employee’s family might reasonably be expected to provide household services
for themselves and the employee.[111]
In particular, the Federal Court noted:
... the household services envisaged are those provided by
the household members themselves. They are not services for which those members
make provision for the injured employee through the agency of third party
providers.[112]
Commencement
and application
The provisions about catastrophic injury commence on the
day after Royal Assent. Part 2 of Schedule 3 to the Seafarers Legislation Bill
operates so that the amendment will apply in relation to compensation in
respect of a week beginning after the commencement of the first legislative
rules which define the term catastrophic injury.[113]
Definitions
of injury and disease
Definition of injury
Section 3 of the Seafarers Act provides that the
term injury means:
- a
disease suffered by an employee
- an
injury (other than a disease) suffered by an employee, that is a physical or
mental injury arising out of, or in the course of, the employee’s employment or
- an
aggravation of a physical or mental injury (other than a disease) suffered by
an employee (whether or not that injury arose out of, or in the course of, the
employee’s employment), that is an aggravation that arose out of, or in the
course of, that employment.
Section 25 of the Seafarers Act provides that compensation
in respect of an injury must be paid in full by an employer whose employment
has made a material contribution to the injury.
However, a disease, injury or aggravation suffered as a
result of reasonable disciplinary action taken against the
employee, or failure by the employee to obtain a promotion, transfer or benefit
in connection with his or her employment is specifically excluded from the
definition.[114]
Items 34 and 45 of Schedule 2 to the Seafarers
Legislation Bill repeal the definitions of disease and injury
respectively from current section 3 of the Seafarers Act.
New definitions of those terms are inserted by item 71
of Schedule 2 to the Seafarers Legislation Bill. In particular, proposed section
5A of the Seafarers Act relates to what constitutes an injury.
References to the term reasonable disciplinary action are
replaced by references to reasonable administrative action taken
in a reasonable manner. Matters which are indicative of the conduct which would
be reasonable administrative action are listed in the Seafarers
Legislation Bill.[115]
Definition of disease
At present, section 3 of the Seafarers Act defines disease
as an ailment suffered by an employee (or an aggravation of such
an ailment) that was contributed to, to a material degree, by the employee’s
employment. An ailment is defined as any physical or mental
ailment, disorder, defect or morbid condition (whether of sudden onset or
gradual development.
The Seafarers Legislation Bill substantially changes what
constitutes a disease by requiring the employee's employment to have
contributed to the ailment to a significant degree. This is a
higher standard than the current standard of material degree. In addition the
Seafarers Legislation Bill sets out those matters that may be taken into
account in determining whether an ailment or aggravation was contributed to, to
a significant degree, by the employee's employment:
- the
duration of the employment[116]
- the
nature of, and particular tasks involved in, the employment[117]
- any
predisposition of the employee to the ailment or aggravation[118]
- any
activities of the employee not related to the employment[119]
and
- any
other matters affecting the employee's health.[120]
Journey
claims
Currently section 9 of the Seafarers Act provides
that an injury to an employee may be treated as having arisen out of, or in the
course of his or her employment in specified circumstances including while the
employee was travelling between one place and another—unless the travel was by
a route that substantially increased the risk of sustaining an injury when
compared with a more direct route, or was interrupted in a way that
substantially increased the risk of sustaining an injury.[121]
Item 79 of the Seafarers
Legislation Bill inserts proposed subsections 9(3A)–(3C) into the Seafarers
Act to create further restrictions on the circumstances in which an injury
sustained on a journey will be accepted.
First, the Seafarers Act will not apply to
travel by an employee if the travel was from the employee’s place of work, the
employee delayed commencing the travel and the reason for the delay was private
or domestic. The exception to this rule is where the delay is beyond the
control of the employee or both the delay is 72 hours or less and the
employer has given written agreement to the delay.[122]
Second, the Seafarers Act will not apply to
travel by an employee if the travel was by a route that was not direct having
regard to the means of transport used and the reason for taking the route was
private or domestic. The exception to this rule is where taking the route is due
to circumstances beyond the control of the employee.[123]
Third, the Seafarers Act will not apply to
travel by an employee if there was an interruption of the travel and the reason
for the interruption was private or domestic. The exception to this rule is
where the interruption is due to circumstances beyond the control of the
employee or both the interruption is 72 hours or less and the employer has
given written agreement to the interruption.[124]
Statement
of Compatibility with Human Rights
According the Statement of Compatibility with Human
Rights:
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 ... The limitation recognises that 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 for example, travel insurance.[125]
Stakeholder
comment
The Australian Maritime Officers Union does not agree that
the rationale for removing journey claims from coverage under the Seafarers Act
is appropriate given that seafarers ‘have unique journey arrangements and
usually live a considerable distance from their places of engagement.
Furthermore, the nature of the seafarer’s roster means that there are very few
work journeys as these will only occur at a minimum of four weeks or so’.[126]
Compensation for hearing loss
Currently, section 39 of the Seafarers Act provides
that an amount of compensation is not payable in respect of permanent
impairment where the degree of permanent impairment is less than 10 percent. The
Seafarers Legislation Bill amends that provision so that where an employee has
a permanent impairment being hearing loss, compensation is not payable if the
binaural hearing loss suffered is less than five percent.[127]
Aligning
the cut-off provisions with the age pension
Under existing section 38 of the Seafarers Act, weekly
compensation is not payable to an employee who has reached 65. In addition,
where an employee who has reached 64 suffers an injury, compensation is not
payable in respect of the injury after the period of 12 months starting on the
day on which the injury happened.
The Seafarers Legislation Bill amends section 38 of the Seafarers
Act to align these cut offs to the qualifying age for age pension as set
out in the Social
Security Act 1991.[128]
To be eligible for Age Pension you must be 65 years or older. From 1 July 2017, the qualifying age for Age Pension will increase from
65 years to 65 years and six months. The qualifying age will then increase by
six months every two years, reaching 67 years by 1 July 2023.[129]
Table 4: age rules
Date of birth |
Qualifying age |
1 July 1952 to 31 December 1953 |
65 years and 6 months |
1 January 1954 to 30 June 1955 |
66 years |
1 July 1955 to 31 December 1956 |
66 years and 6 months |
From 1 January 1957 |
67 years |
Source: Department of Human Services (DHS), Age
pension: eligibility basics, DHS website, 12 April 2017.
Redemption
of compensation
A redemption payment is a payment to an
injured employee of a lump sum to finalise ongoing and future entitlements to
income maintenance and/or medical expenses. The
method of calculating redemption payments, and their scope, differs across
jurisdictions.
Broadly speaking, redemption payments have three features.
They comprise a lump sum payment based on an estimation of the injured
employee’s future needs. They represent a compromise between the positions of
the claimant and the insurer or employer, so that neither party gets exactly
what they want. They are problematic because they typically involve a full
release of the insurer from liability in circumstances where the future course
of disability and medical treatment may deviate from that assumed in making the
calculation. What might seem to be a reasonable ‘compromise’ today may turn out
to be inadequate (or excessive) in just a few years.[130]
Redemption does not extinguish an employer's liability to
resume incapacity payments to the employee if the injury later incapacitates
him or her to the extent that the employee cannot engage in suitable
employment, and the injury is likely to last indefinitely.[131]
Current
legislation
Under existing section 44 of the Seafarers Act,
where an employee is in receipt of a weekly payment which is less than $62.99
and the employer is satisfied that the degree of the employee’s incapacity is
unlikely to change, the employer must make a determination that its liability
to make further payments of weekly compensation to the employee is to be
redeemed by the payment to the employee of a lump sum. The redemption amount is
calculated in accordance with the formula set out in subsection 44(2).
Item 99 of Schedule 2 to the Seafarers Legislation
Bill amends that formula so that the calculation takes into account the number
of years between the date of the injury and the person’s pension age.[132]
Key
issue—updating liability provisions
The Seafarers Act provides that, as a general rule,
an employee is not entitled to make a claim for compensation for injury or loss
of, or damage to, property against his or her employer, or an employee of the
employer.[133]
In the alternative, an employee can elect to bring an action or proceeding
against his, or her, employer or another employee for damages for any non-economic
loss suffered by the employee because of the injury. Such an election is
irrevocable and if successful, damages for non-economic loss are limited to
$138,570.52.[134]
Item 101 of Schedule 2 to the Seafarers Legislation
Bill inserts proposed subsections 54(4) and (5) into the Seafarers
Act with the effect that where an employee has suffered a compensable
injury which resulted in the employee's death, a dependent of the employee is
not prevented from bringing an action against the employer, or another employee
in respect of the death. This will be the case whether or not the deceased
employee had made an election before his or her death.
Common law claims against third parties
Existing section 59 of the Seafarers Act provides
that an employer can institute proceedings on behalf of an employee or
dependant of the employee to recover damages from a liable third party. This
may occur with, or without the consent of the employee or dependant.[135]
The Seafarers Legislation Bill updates references in the Seafarers Act
to ‘make a claim’, rather than ‘institute proceedings’.[136]
In addition, item 126 of Schedule 2 to the
Seafarers Legislation Bill repeals and replaces existing subsections 59(4)–(9)
of the Seafarers Act to require an employer who makes
a claim or takes over the conduct of an existing claim to, amongst other things:
- conduct
the claim in the interests of the person in whose name the claim was made[137]
- pay
all costs of, or incidental to, any claim taken over by it, being costs payable
by the plaintiff in that claim[138]
- take
whatever steps are appropriate to bring the claim to a conclusion and to settle
the proceedings, either with or without obtaining judgment[139]
and
- take
any steps that are necessary to enforce a judgment where judgment has been
obtained.[140]
The Seafarers Legislation Bill also sets out requirements
with which an employee or dependant must comply where a claim has been made, or
taken over, by the employer.[141]
Comcare and
the Seacare Advisory Group
Existing Part 7 of the Seafarers Act establishes
the Seacare Authority. Its primary functions are:
- to
monitor the operation of the Seafarers Act
- to
promote high operational standards of claims management and effective rehabilitation
procedures by employers
- to
co-operate with other bodies or persons with the aim of reducing the incidence
of injuries to employees
- to
publish material relating to the functions of the Authority and
- to
advise the Minister for Employment regarding the Authority's functions and
powers and other matters relating to the compensation and rehabilitation of
employees.[142]
Item 175 of Schedule 2 to the Seafarers Legislation
Bill repeals Divisions 2 and 3 of Part 7 with the effect that the Seacare
Authority is abolished. Consequently the Seafarers Legislation Bill:
- splits
the functions of the Seacare Authority between Comcare and the Safety,
Rehabilitation and Compensation Commission (the Commission)[143]
- establishes
the Seacare Advisory Group to provide support and industry expertise to the
Commission and Comcare as required and
- makes
multiple amendments to change references to the Authority to references to
Comcare.[144]
Seacare
Advisory Group
Currently,
section 68 of the SRC Act establishes a body called Comcare which has a range of
functions and responsibilities under the SRC
Act, the WHS Act and the Asbestos-related
Claims (Management of Commonwealth Liabilities) Act 2005. Amongst other things,
Comcare provides advice and services to the Seacare Authority.
Functions
Item 17 of Schedule 2 to the Seafarers Legislation
Bill inserts proposed section 89RA into the SRC Act to establish
the Seacare Advisory Group. Under the Bill, the main function of the Seacare
Advisory Group is to assist the Commission in the performance of its functions,
and the exercise of its powers, under the Seafarers Rehabilitation and
Compensation Act 1992 and subsection 274(2B) of the WHS Act.[145]
In performing its functions, or exercising its powers, the Commission must have
regard to any relevant advice or information given to it by the Seacare
Advisory Group.[146]
In addition, the Seacare Advisory Group is to give advice
or information to Comcare about a matter that relates to compliance with
section 93 of the Seafarers Rehabilitation and Compensation Act 1992[147]
and any other matter that relates to the Seafarers Rehabilitation and
Compensation Act 1992, either on request by Comcare or on its own
initiative.[148]
In performing its functions, or exercising its powers, Comcare must have regard
to any relevant advice or information given to it by the Seacare Advisory
Group.[149]
Members
The Seafarers Legislation Bill does not specify the number
of persons to comprise the Seacare Advisory Group. However, it requires
that at least one member is a person appointed on the nomination of an
organisation or organisations that represents the interests of employers of
employees[150]
and at least one member is a person appointed on the nomination of an organisation
or organisations that represents the interests of employees.[151]
All the members are appointed by the Chairperson of the Commission[152]
and the Chairperson may terminate the appointment of a member of the Seacare
Advisory Group.[153]
Item 18 of Schedule 2 to the Seafarers Legislation
Bill inserts proposed subsections 89S(3) and (4) into the SRC Act
setting out the relevant annual report requirements of the Seacare Advisory
Group.
Reconsideration
of decisions
One of the consequences of the abolition of the Seacare
Authority is the manner in which claim determinations will be reconsidered.
Essentially, the current decision making process flows as follows:
- the
employer makes a determination about whether to accept or reject a claim for
seafarers compensation[154]
- the
employer may on its own initiative reconsider a determination it has made or
may reconsider the determination upon a request in writing from the claimant[155]
- on
the receipt of a request for reconsideration the employer must seek
assistance from either:
-
Comcare
or
- if
the employer is party to a collective agreement or a pre-reform certified
agreement that relates to industry panels—an industry panel.[156]
The Seafarers Legislation Bill removes references to an
industry panel so that an employer may arrange with Comcare for a
Comcare officer to assist in the reconsideration.[157]
Key issue—compulsory
insurance
Implementing
the Maritime Labour Convention
The provisions of Part 2 of Schedule 2 to the Seafarers
Legislation Bill commence on the later of the 28th day after Royal Assent, and
1 January 2017.
The Maritime Labour Convention (MLC) entered
into force on 20 August 2013.[158]
In April 2014 the International Labour Organisation (ILO) agreed to several amendments
which entered into force on 18 January 2017.
Ships that are subject to the MLC will, after this
date, be required to display certificates issued by an insurer or other
financial security provider confirming that insurance or other financial
security is in place to ensure compensation to seafarers and their families in
the event of abandonment, death or long-term disability of seafarers due to an
occupational injury, illness or hazard.[159]
Key
provisions
Existing subsection 93(1) of the Seafarers Act requires
an employer to:
- maintain
a policy of insurance or indemnity
- be
a member of a protection and indemnity Association that is approved by the
Seacare Authority or
- be
a member of an employers’ mutual indemnity association that is approved by the
Seacare Authority.
The Seafarers Legislation Bill replaces references to the
Authority in this section with references to Comcare.[160]
Item 7 of Schedule 2 to the Seafarers Legislation
Bill inserts proposed subsections 93(5) and (6) into the Seafarers
Act to require that, when making an application for membership of a
protection and indemnity association or on employers’ mutual indemnity
association, an employer must give a full and correct statement of all the
salaries and wages paid, or other remuneration provided, to their employees for
the period relevant to working out the membership fee.
The Seafarers Legislation Bill inserts three strict
liability offence provisions[161]
into the Seafarers Act where an employer has a policy of insurance or
indemnity or is a member of a protection and indemnity association or an
employers’ mutual indemnity association:
- first,
an employer must, within 14 days, notify the Seacare Authority if there is a
change, cancellation or termination of the policy or in their membership of a
relevant association. A person commits an offence of strict liability if he, or
she, fails to comply with the notification requirement[162]
- second,
an employer must notify each of his, or her, employees if it is proposed to
cancel or terminate the policy or membership of a relevant association. A
person commits an offence of strict liability if he, or she, fails to comply
with this requirement as soon as practicable after becoming aware of the
proposed termination or cancellation and before that action occurs[163]
- third,
if an employer is the operator of a vessel[164]
that is registered under the Shipping
Registration Act 1981 on which one or more employees are employed, the
employer must ensure that a certificate of insurance and information statement
are displayed on board the vessel in a conspicuous position that is readily
accessible to each of those employees at all times. Where a person is subject
to these requirements, he or she commits an offence of strict liability if the
certificate of insurance and information statement are not displayed as
required.[165]
In each of the above circumstances the maximum penalty is
20 penalty units which is currently equivalent to $3,600.
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee commented on the offence
provisions and the fact that the Explanatory Memorandum provides no
justification as to why the offences are subject to strict liability. That
being the case, the Committee has sought a detailed justification from the
Minister for each proposed strict liability offence with reference to the
principles set out in the Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.[166]
The Minister’s advice to the Scrutiny of Bills Committee
was:
... the offences arise in a regulatory context where the
employer can reasonably be expected to know what the requirements of the law
are; strict liability is justified in the interest of ensuring the regulatory
scheme is observed; and the offences are not punishable by imprisonment and
have a relatively low maximum [financial] penalty.[167]
The Committee therefore requested that this information be
included in the Explanatory Memorandum.[168]
Commencement
These provisions are to commence on the later of the 28th
day after the Act receives Royal Assent, or 1 January 2017.
When the provisions of Part 3 of Schedule 2 to the
Seafarers Legislation Bill commence on 1 July 2017 the references above to the
Seacare Authority will automatically become references to Comcare.[169]
Default fund
Existing
fund
Currently, section 96 of the Seafarers Act empowers
the Minister to approve a trading corporation to be the Fund for the purposes
of the Act. Accordingly, the Seafarers Safety Net Fund (the
Fund) is a safety net ‘employer’ which stands in place of an employer
where there is no employer (usually due to that employer going out of business)
against whom a seafarer can make compensation claim.
The Seafarers Legislation Bill repeals
Division 2 of Part 7 of the Seafarers Act which establishes the Fund.[170]
Administration
Item 176 of the Seafarers Legislation Bill inserts proposed
Part 8—Administration into the Seafarers Act to set
out a range of administrative matters.
Quick guide to Part 8 The Commission's functions include:
- monitoring
the operation of the Seafarers Act
- promoting
higher operational standards of claims management, and effective
rehabilitation procedures, by employers and
- advising
the Minister about the operation of the Seafarers Act.
The Commission may obtain information from an employer if
the information is relevant to the compilation of statistics for injury
prevention purposes. Comcare may obtain information from an employer if the
information is relevant to a claim made by an employee of the employer. The Seafarers Rehabilitation and Compensation Account
continues in existence as a special account under the Seafarers Act. |
In particular proposed Part 8
contains the changed functions of the Commission being:
- monitoring the operation of the Seafarers Act
- promoting high operational standards of claims management, and
effective rehabilitation procedures, by employers and
- advising the Minister about the operation of the Act.[171]
In addition, proposed section 107
of the Seafarers Act renames the special account which was established
by the Financial Management and Accountability (Establishment of Special
Account) Determination 2002/06 as the Seafarers
Rehabilitation and Compensation Special Account.
Basis of a
special account
Under section 81 of the Constitution
all moneys raised or received by the Commonwealth form part of the Consolidated
Revenue Fund (CRF). Furthermore, section 83 of the Constitution provides
that no money may be drawn from the Treasury of the Commonwealth without a
legal appropriation authority.[172]
The CRF in section 81 of the Constitution is synonymous with the
Treasury in section 83.[173]
Under subsection 80(1) of the Public Governance,
Performance and Accountability Act 2013 if an Act establishes a special
account and identifies the purposes of the special account, then the CRF is
appropriated for expenditure for those purposes, up to the balance for the time
being of the special account.
Purpose of the special account
Proposed section 109 which is contained in proposed Part 8 of the Seafarers
Act sets out the various
purposes of the Seafarers Rehabilitation and Compensation Special Account. According
to the Explanatory Memorandum to the Seafarers Legislation Bill the ‘Special
Account will fund any liabilities incurred by Comcare as a default employer’.[174]
To that end item 69 of Schedule 2 to the Seafarers Legislation Bill
inserts proposed section 4A into the Seafarers Act to define a default
event as occurring when
Comcare declares in writing that it is satisfied that a specific employer is
unable to meet the employer’s liabilities under the Seafarers Act. Comcare
must not make such a declaration unless:
- if
the employer is a corporation—it is being wound‑up or ceases to exist
- if
the employer is an individual—the employer becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors, compounds
with the employer’s creditors or makes an assignment of the employer’s property
for the benefit of the employer’s creditors.[175]
Other provisions
Amending
the Work Health and Safety Act
When the OHS(MI) Act was enacted
in 1993, the arrangements set out in the legislation were intentionally based
on the Occupational Health and Safety (Commonwealth Employment) Act 1991 and were similar to the arrangements
provided under the OHS laws at that time of the Australian states and territories.
In 2012, the Occupational Health and Safety (Commonwealth Employment) Act
was replaced by the WHS Act which gives effect to the model WHS Bill agreed to nationally in
2009. The OHS(MI) Act was
not similarly amended or replaced, leading to inconsistencies and differences
between the two Acts.[176]
The WHS Act and Work,
Health and Safety Regulations 2011 (WHS Regulations) provide a framework to secure the health and
safety of workers and workplaces by protecting workers and other persons
against harm to their health, safety and welfare through the elimination of
risks arising from work. The WHS Act and WHS Regulations promote
continuous improvement and progressively higher standards of work health and
safety.[177]
The WHS Act requires that a person who conducts a
business or undertaking (PCBU) ensures the health and safety of workers engaged by the PCBU
while the workers are at work in the business or undertaking, so far as is
reasonably practicable. The WHS Act imposes a duty on a PCBU to:
- eliminate risks to health and safety so far as is reasonably
practicable and
- if elimination is not reasonably practicable, to minimise the risks
so far as is reasonably practicable.[178]
The WHS Act imposes other duties
on PCBUs and other persons in relation to workers and workplaces. In addition,
it provides for consultation, representation and participation to further the
objects of the Act. This includes workplace arrangements like work groups,
health and safety representatives and health and safety committees.[179]
Items 190 and 191 of Part 3 in Schedule 2 to the Seafarers Legislation Bill amend the
WHS Act so that where
the Seafarers Act applies
to the employment of an employee on a vessel, the WHS Act applies to:
- a person who is conducting a business or undertaking on the vessel
- a worker who is carrying out work on the vessel in any capacity for
a business or undertaking and
- a vessel on which work is carried out for a business or undertaking.[180]
In that case the Australian Maritime
Safety Authority (AMSA) is the regulator.[181]
Item 199 of Part 3 of Schedule 2 to the Seafarers Legislation Bill inserts proposed
Part 5—Miscellaneous into Schedule
2 to the WHS Act setting
out the functions and powers of AMSA and AMSA inspectors. In addition, it
allows for AMSA and Comcare to share information which is relevant to the application
of the WHS Act to
employees who are covered by the Seafarers Act.
Stakeholder comment
The MUA fundamentally disagrees with the
proposed repeal of the OHS(MI) Act and the amendment of the WHS Act.
Coverage under the WHS Act exists if
the [Seafarers Act] applies to the employment of an employee on the
vessel. Therefore, the WHS Act would impose the same requirement of
establishing employment of a prescribed vessel which is not used wholly or
predominantly for intrastate voyages or tasks.[182]
Essentially then, the MUA believes that
the Seafarers Legislation Bill does not achieve its stated purpose of
clarifying who is covered by the Seafarers Act and that this problem will create consequential questions about
coverage under the WHS Act.
Amending the SRC Act
Catastrophic injuries
As stated above the Government
introduced the Safety, Rehabilitation and Compensation Amendment (Improving the
Comcare Scheme) Bill 2015 (2015 Bill) into the House of Representatives on 25
March 2015.[183]
However, the 2015 Bill lapsed when the Parliament was prorogued in April 2016. Schedule
6 of the 2015 Bill contained amendments which, if enacted, would have inserted
a new definition of catastrophic injury into the SRC Act and
established clearer rules for the payment of household care services and
attendant care services for persons who sustain catastrophic or
non-catastrophic injuries.
Item 200 of Part 4 of Schedule 2 to the Seafarers
Legislation Bill amends the SRC Act to insert a new definition of catastrophic
injury—being an injury where the conditions specified in the
legislative rules are satisfied.[184]
Item 205 inserts proposed section 122A into the SRC Act
to empower the Minister, by legislative instrument, to make such legislative
rules.[185]
Item 203 of Schedule 2 to the Seafarers Legislation
Bill inserts proposed section 29A into the SRC Act to provide
compensation for household services and attendant care services obtained as a
result of a catastrophic injury. This section is in equivalent terms to proposed
section 43A of the Seafarers Act which is inserted by item 4 of
Part 1 of Schedule 2 as discussed above.
Commencement
and application
The provisions about catastrophic injury commence on the
day after Royal Assent. Part 9 of Schedule 3 to the Seafarers Legislation Bill
operates so that the amendment to the SRC Act will apply in relation to
compensation in respect of a week beginning after the commencement of the first
legislative rules which define the term catastrophic injury.[186]
Aligning
pension age
Items 206–211 amend the SRC Act so that
compensation is not payable to an employee who has reached pension age. As with
the amendments to the Seafarers Act, above, the term pension age has
been linked to the Social Security Act.
Amending
the Offshore Petroleum and Greenhouse Gas Storage Act
The Offshore Petroleum
and Greenhouse Gas Storage Act 2006 (OPGGS Act) sets up a system
for regulating various activities in offshore areas. Those
activities are:
- exploration
for, and recovery of, petroleum
- construction
and operation of infrastructure facilities relating to, and pipelines for
conveying, petroleum or greenhouse gas substances
- exploration
for potential greenhouse gas storage formations
- injection
and storage of greenhouse gas substances.[187]
Currently, section 640 of the OPGGS Act defines the
term Commonwealth maritime legislation as the Navigation Act 2012,
the Occupational
Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act) and
any subordinate legislation under either of those Acts. Commonwealth
maritime legislation does not apply in relation to:
- a
facility located in the offshore area of a state or territory
- a
person at such a facility
- a
person near such a facility, to the extent to which the person is affected by such
a facility or activities that take place at such a facility or
- activities
that take place at such a facility.[188]
As the OHS(MI) Act is repealed by Schedule 1 of the
Seafarers Legislation Bill, item 10 of Schedule 2 to the Seafarers
Legislation Bill amends paragraph 640(3)(b) of the OPGGS Act to
substitute the reference to the OHS(MI) Act with a reference to the Work
Health and Safety Act 2011 (WHS Act), in so far as it applies to the
maritime sector in the definition of Commonwealth maritime legislation.
The Explanatory Memorandum to the Seafarers Legislation
Bill describes the provision as ‘a consequential amendment’ ... ‘to maintain the
current exclusion of maritime WHS legislation to facilities subject to the OPGGS
Act’.[189]
Levies Bills
Repeals
Schedule 1 of the Seafarers Legislation Bill repeals the
following statutes with effect from 1 July 2017:
The current Levy Act imposes a levy calculated on
the basis of seafarer berths, which is payable by an employer who employs or
engages seafarers on a prescribed ship. The proceeds of the levy are used for
the Seafarers Safety Net Fund which is a ‘safety net employer’ if a default
event occurs.
The Levy Collection Act provides for the collection
of the levy as a debt due to the Commonwealth.
Part 5 of Schedule 3 to the Seafarers Legislation Bill
provides for the winding up of the old levy scheme so that despite the repeals
of the Levy Act and the Levy Collection Act those Acts continue
to apply in relation to matters before the transition time which
is 1 July 2017.[190]
Seafarers
Safety and Compensation Levies Bill
Commencement
Sections 1 and 2 commence on Royal Assent. Section 14
commences on the day after Royal Assent. Sections 3–13 and section 15 commence
on 1 July 2017.
Financial
implications
According to the Explanatory Memorandum to the Levies Bill
its financial impact will be nil.[191]
Key
provisions
The Levies Bill imposes two levies—an insurance levy and
cost recovery levy—on seafarer berths.
Insurance
levy
The key features of the insurance levy are:
- the
levy is imposed on seafarer berths on a particular prescribed vessel where the
seafarer berths are normally used by seafarers who are employed by a particular
employer[192]
- the
levy is called the seafarers insurance levy
- the
amount of the seafarers insurance levy is $15 or an amount declared by
regulation[193]
for each seafarer berth—however, that regulation must not be made unless the
designated actuary has made a recommendation about the actuarial component[194]
and the amount prescribed in the regulation is less than or equal to the amount
specified in the most recent recommendation of the designated actuary[195]
- the
seafarers insurance levy is imposed on seafarer berths and payable by the
employer who employs the seafarers who normally use those berths[196]
- the
seafarers insurance levy may be comprised of an actuarial component and
administrative component.[197]
According to the Explanatory Memorandum to the Levies Bill
‘this component of the levy is unchanged from the levy collected under the ... Levy
Act’.[198]
Cost
recovery levy
The purpose of the cost recovery levy is to ‘recover the
costs of the Commission, Comcare and AMSA in performing their respective
regulatory functions in relation to the Seacare Scheme where these costs are
not readily attributable to a specific organisation or individual’.[199]
The features of the cost recovery levy are:
Seafarers
Safety and Compensation Levies Collection Bill
Commencement
Sections 1 and 2 commence on Royal Assent. Sections 3–23
commence on 1 July 2017.
Financial
implications
According to the Explanatory Memorandum to the Levies Collection
Bill its financial impact will be nil.[204]
Key
provisions
The Levies Collection Bill defines the term quarter
for the purposes of its operation as being a period of three months beginning
on 1 January, 1 April, 1 July or 1 October.[205]
The Levies Collection Bill requires an employer to give
quarterly returns about seafarer berths to the Commission if on the first day
of a quarter the seafarer berths are on a particular prescribed vessel and the
seafarer berths are normally used by seafarers who are employed by a particular
employer.[206]
The return must comply with the manner and form set out in the Levies
Collection Bill. The return is due within 14 days after the start of the
quarter.[207]
A person who fails to lodge the return as required commits
an offence of strict liability.[208]
The maximum penalty for the offence is five penalty units, being equivalent to
$900.[209]
Where a seafarers insurance levy or a seafarers cost
recovery levy is imposed on seafarer berths on a prescribed vessel on the first
day of a quarter, then the levy is due for payment at the end of
the period of 14 days after the start of the quarter.[210]
If an amount of the levy payable by a person remains
unpaid after the time it became due for payment, a late payment penalty amount
is calculated at the rate of 20 percent per annum, or such lower rate as is
specified by the regulations on the amount unpaid.[211]
An amount of levy and an amount of late payment penalty
may be recovered as a debt due to the Commonwealth in a court of competent
jurisdiction.[212]
The Commonwealth must pay Comcare an amount equal to the
amount of seafarers cost recovery levy and late payment penalty relating to
that levy, received by the Commonwealth. The Consolidated Revenue Fund is
appropriated for the purpose of making those payments.[213]
Key
issues—cost to business
MIAL was strongly against the cost recovery levy and fees
which are introduced by the package of Bills on the grounds that ‘this will add
additional costs to a scheme that is already the most expensive in the country
and produces poor safety, rehabilitation and return to work outcomes
comparative with state and territory schemes’.
According to MIAL the cost recovery levy and fees:
... will add an additional cost to Australian shipping, which
is already struggling to be competitive with other ships who are not burdened
with the same costs in the global market. Imposing additional costs on
Australian operators will further expand the existing cost differential with
international operators, creating a disincentive to operate Australian ships
and employ Australian seafarers.[214]
Concluding comments
This Bill does not appear to have satisfied either
employer groups or employee groups.
For employers, the Seafarers Legislation Bill does not go
far enough—they would prefer to see the repeal of the Seafarers Act and
employee coverage for workers’ compensation and work health and safety in the
hands of the states and territories. This would certainly simplify the question
of coverage but the unions are correct in pointing out that two adverse
outcomes could arise from such a move:
- the
entitlements under the state and territory schemes may be less than those
currently payable under the Seacare scheme and
- an
injured employee who is, for instance, domiciled in North Queensland may find
that the insurer is located in Western Australia with all the attendant
difficulties associated with communication and finding an appropriate rehabilitation
provider.
On the other hand, employees are also not pleased with the
Seafarers Legislation Bill, arguing that the question of coverage has not been
clarified and that the effect of the Bill is to significantly limit the number
of vessels that are subject to the Seacare scheme—with the attendant concern
that this may make the scheme unviable.
[1]. L
Nielson, Seafarers
Rehabilitation and Compensation and Other Legislation Amendment Bill 2015,
Bills digest 88, 2014–15, Parliamentary Library, Canberra, 2015, p. 5.
[2]. Maritime
Labour Convention, done in Geneva 7 February 2006, [2013] ATS 29, (entered
into force for Australia and generally 20 August 2013).
[3]. Seafarers
Safety Rehabilitation and Compensation Authority (Seacare Authority), ‘About us’,
Seacare website, 1 February 2017.
[4]. Seafarers Safety, Rehabilitation and Compensation Authority,
Annual
report 2015–16: Seacare, Comcare, Canberra, 2016, p. 2.
[5]. Seacare
Authority, ‘About
us’, op. cit.
[6]. New
South Wales v The Commonwealth of Australia (1975) 135 CLR 337, [1975] HCA 58.
[7]. Attorney-General’s
Department (AGs), Offshore
constitutional settlement, AGs website.
[8]. The
Navigation Act 1912 was repealed and replaced by the Navigation Act 2012.
[9]. Seacare
Authority, Seacare
jurisdictional coverage, Discussion paper, Seacare Authority, Canberra,
15 February 2012.
[10]. Aon
Risk Services Australia Limited, Submission
to the Department of Employment (DoE), Consultation regulation impact
statement, submission no. SSR1500016, 5 February 2016,
p. 8.
[11]. Seacare
Authority, Seacare
jurisdictional coverage, op. cit., p. 5.
[12]. Samson
Maritime Pty Ltd v Aucote (2014) 315 ALR 277, [2014] FCAFC
182.
[13]. Aucote
and Samson Maritime Pty Ltd (2014) 63 AAR 418, [2014] AATA
296.
[14]. That
is, a corporation covered by section 51(xx) of the Constitution—a
trading corporation or financial corporation formed within the limits of the
Commonwealth, or a foreign corporation.
[15]. For
the purposes of the Seafarers Act, the term prescribed ship
means a ship prescribed for the purposes of the Navigation Act 1912,
which are generally Australian ships or foreign ships with Australian crews.
[16]. L
Nielson, Seafarers
Rehabilitation and Compensation and Other Legislative Amendments Bill 2015,
op. cit.
[17]. Seacare
Authority, ‘Section
20A exemption granted by Seacare Authority’, Seacare website, 12 May 2015.
[18]. Seacare
Authority, Exemption—multiple
vessels, domestic commercial vessels, Seacare Authority,
Canberra, 20 April 2017.
[19]. Seafarers Safety, Rehabilitation and
Compensation Authority, Annual
report 2015–16: Seacare, op. cit., p. 3.
[20]. Explanatory
Memorandum, Seafarers and Other Legislation Amendment Bill 2016, p. i.
[21]. B
Shorten (Minister for Employment and Workplace Relations), Review
of national compensation scheme for seafarers, media release, 16 October 2012.
[22]. Review
of the Seacare scheme, [R Stewart-Crompton, reviewer], Australian Government,
Canberra, March 2013.
[23]. B
Shorten (Minister for Employment and Workplace Relations, Financial Services
and Superannuation), Modernising
the Seacare scheme, media release, 20 May 2013.
[24]. P
Hanks, Safety,
Rehabilitation and Compensation Act review: report, Department of
Education, Employment and Workplace Relations, Canberra, February 2013.
[25]. Review
of the Seacare scheme, op. cit., p. 1.
[26]. Parliament
of Australia, ‘Safety,
Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill
2015 homepage’, Australian Parliament website.
[27]. Explanatory
Memorandum, Seafarers and Other Legislation Amendment Bill 2016,
op. cit., ‘Regulation impact statement’, September 2016, p. l.
[28]. DoE,
Seacare
scheme: reforms to work health and safety and workers’ compensation:
consultation paper, Australian Government, December 2015.
[29]. DoE,
‘Seacare
scheme reforms: consultation regulation impact statement: list of submissions’,
DoE website, [2016].
[30]. Explanatory
Memorandum, Seafarers and Other Legislation Amendment Bill 2016,
op. cit., ‘Regulation impact statement’, September 2016,
p. xlvi.
[31]. Ibid.,
p. xlviii.
[32]. Ibid.
[33]. The
terms of reference, submissions to the Education and Employment Committee and
the Committee’s report are contained on the inquiry homepage.
[34]. Senate
Education and Employment Legislation Committee, Seafarers
and Other Legislation Amendment Bill 2016 [Provisions], Seafarers Safety and
Compensation Levies Bill 2016 [Provisions] and Seafarers Safety and
Compensation Levies Collection Bill 2016 [Provisions], Senate,
Canberra, February 2017.
[35]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 8,
2016, The Senate, 9 November 2016, pp. 40–45.
[36]. Senate
Education and Employment Legislation Committee, Seafarers
and Other Legislation Amendment Bill 2016 [Provisions], Seafarers Safety and
Compensation Levies Bill 2016 [Provisions] and Seafarers Safety and
Compensation Levies Collection Bill 2016 [Provisions], op. cit.,
p. 21.
[37]. Ibid.,
p. 25. However, it should be noted that the Department of Employment
strongly denied that this was the case, setting out the timetable of its
industry and union stakeholder consultation in Department of Employment, Supplementary
submission to the Senate Education and Employment Legislation Committee,
Inquiry into the Seafarers and Other Legislation Amendment Bill 2016, the
Seafarers Safety and Compensation Levies Bill 2016 and the Seafarers Safety and
Compensation Levies Collection Bill 2016, submission no. 2.1,
19 December 2016, Attachment A.
[38]. Australian
Council of Trade Unions (ACTU), Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Seafarers and Other Legislation Amendment Bill 2016, the Seafarers Safety
and Compensation Levies Bill 2016 and the Seafarers Safety and Compensation
Levies Collection Bill 2016, submission no. 5, November 2016,
p. 3.
[39]. Maritime
Union of Australia (MUA), Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Seafarers and Other Legislation Amendment Bill 2016, the Seafarers Safety
and Compensation Levies Bill 2016 and the Seafarers Safety and Compensation
Levies Collection Bill 2016, submission no. 4,
12 December 2016, pp. 8–9.
[40]. Maritime
Industry Australia, Submission
to the Department of Employment, Seacare scheme reforms: consultation
regulation impact statement: list of submissions, submission no. SSR1500020,
5 February 2016, p. 4.
[41]. Ibid.
[42]. Australian
Mines and Metals Association (AMMA), Submission
to the Department of Employment, Seacare scheme reforms: consultation
regulation impact statement: list of submissions, submission no. SSR1500021,
February 2016, p. 2.
[43]. The
Statement of Compatibility with Human Rights can be found at pages i–xvii of
the Explanatory
Memorandum to the Seafarers and Other Legislation Amendment Bill 2016, pages
iv–v of the Explanatory
Memorandum to the Seafarers Safety and Compensation Levies Bill 2016 and pages
iv–v of the Explanatory
Memorandum to the Seafarers Safety and Compensation Levies Collection Bill
2016.
[44]. Parliamentary
Joint Committee on Human Rights, Report,
9, 2016, The Senate, Canberra, 22 November 2016, p. 39.
[45]. Explanatory
Memorandum, Seafarers and Other Legislation Amendment Bill 2016, p. i.
[46]. That
is, a corporation covered by section 51(xx) of the Constitution—a trading
corporation or financial corporation formed within the limits of the
Commonwealth, or a foreign corporation.
[47]. Seafarers
Act, proposed subsection 25B(1).
[48]. Item
53 of Part 3 in Schedule 2 to the Seafarers Legislation Bill.
[49]. Item
62 of Part 3 in Schedule 2 to the Seafarers Legislation Bill inserts proposed
section 3A into the Seafarers Act.
[50]. Seafarers
Act, proposed subsection 3A(2), inserted by item 62 of the
Seafarers Legislation Bill.
[51]. Item
54 of Part 3 in Schedule 2 to the Seafarers Legislation Bill inserts the
definition of the term recreational vessel into section 3 of the Seafarers
Act.
[52]. Item
46 of Part 3 in Schedule 2 to the Seafarers Legislation Bill inserts the
definition of the term inland waterways vessel into section 3 of
the Seafarers Act.
[53]. Item
62 of Part 3 in Schedule 2 to the Seafarers Legislation Bill inserts proposed
section 3B into the Seafarers Act to formally define the terms fishing
vessel and fishing fleet support vessel.
[54]. Item
62 of Part 3 in Schedule 2 to the Seafarers Legislation Bill inserts proposed
section 3D into the Seafarers Act to formally define the term offshore
floating storage or production unit.
[55]. Item
62 of Part 3 in Schedule 2 to the Seafarers Legislation Bill inserts proposed
section 3C into the Seafarers Act to formally define the term offshore
industry mobile unit.
[56]. Item
43 of Part 3 in Schedule 2 to the Seafarers Legislation Bill inserts the
definition of the term government vessel into section 3 of the Seafarers
Act.
[57]. Item
46 of Part 3 in Schedule 2 to the Seafarers Legislation Bill inserts the
definition of the term local tourism vessel into section 3 of the
Seafarers Act.
[58]. Seafarers
Act, proposed subsection 3A(3) , inserted by item 62 of the
Seafarers Legislation Bill.
[59]. Maritime
Union of Australia (MUA), Submission
to the Senate Education and Employment Legislation Committee, op. cit.,
pp. 27–28.
[60]. Seafarers
Act, proposed subsection 25B(5).
[61]. Item
33 of Part 3 in Schedule 2 to the Seafarers Legislation Bill inserts the
definition of the term designated waters into section 3 of the Seafarers
Act.
[62]. Seafarers
Act, proposed subsection 25B(6).
[63]. Seafarers
Act, proposed subsection 25B(7).
[64]. Ibid.,
proposed subsection 25B(3).
[65]. Ibid.,
proposed section 25C.
[66]. Ibid.,
proposed subsection 25E(1). Proposed section 25L contains an
extended meaning of the term owner which applies to opt-in
declarations.
[67]. Ibid.,
proposed paragraph 25E(3)(c) and subsection 25E(4).
[68]. Ibid.,
proposed subsections 25E(8) and (9).
[69]. Ibid.,
proposed subsection 25E(6).
[70]. Australian
Maritime Officers Union, Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Seafarers and Other Legislation Amendment Bill 2016, the Seafarers Safety
and Compensation Levies Bill 2016 and the Seafarers Safety and Compensation
Levies Collection Bill 2016, submission no. 6, n.d., p. 9.
[71]. Ibid.,
proposed subsection 25H(2).
[72]. Ibid.,
proposed subsection 25H(4).
[73]. Ibid.,
proposed subsection 25H(5).
[74]. Ibid.,
proposed subsection 25H(7).
[75]. Ibid.,
proposed subsection 25H(9).
[76]. Ibid.,
proposed subsection 25H(13).
[77]. Ibid.,
proposed subsection 25H(14).
[78]. Ibid.,
proposed subsection 25J(1).
[79]. Ibid.,
proposed subsections 25J(4) and (5).
[80]. Ibid.,
proposed subsection 25J(8).
[81]. Ibid.,
proposed subsection 25J(9).
[82]. Ibid.,
proposed subsection 25J(11).
[83]. Ibid.,
proposed subsection 25J(13).
[84]. Ibid.,
proposed subsection 25M(1).
[85]. Ibid.,
proposed subsection 25M(3).
[86]. Ibid.,
proposed subsection 25M(5).
[87]. Ibid.,
proposed subsection 25M(6).
[88]. Ibid.,
proposed subsection 25M(7).
[89]. Ibid.,
proposed subsection 25M(8).
[90]. Ibid.,
proposed subsections 25P(6) and (7), inserted by item 84 of
Schedule 2 to the Seafarers Legislation Bill.
[91]. Ibid.,
proposed subsection 25M(14), inserted by item 84 of Schedule 2 to
the Seafarers Legislation Bill.
[92]. Ibid.,
proposed paragraph 25M(16)(b), inserted by item 84 of Schedule 2
to the Seafarers Legislation Bill.
[93]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 8, 2016, op. cit., p. 41.
[94]. Ibid.
[95]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, 2017, The Senate, 15 February 2017, p. 48.
[96]. Ibid.,
p. 48.
[97]. Seafarers
Act, proposed subsection 25Q(4).
[98]. Ibid.,
proposed subsections 25Q(6)–(8).
[99]. Ibid.,
proposed section 25K.
[100]. Ibid.,
proposed section 25R.
[101]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 8,
op. cit., p. 42.
[102]. Ibid.
[103]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., p. 49.
[104]. Ibid.,
p. 50.
[105]. Australian
Maritime Officers Union, Submission
to the Senate Education and Employment Legislation Committee, op. cit.,
p. 5.
[106]. Maritime
Union of Australia (MUA), Supplementary
submission to the Senate Education and Employment Legislation Committee,
Inquiry into the Seafarers and Other Legislation Amendment Bill 2016, the
Seafarers Safety and Compensation Levies Bill 2016 and the Seafarers Safety and
Compensation Levies Collection Bill 2016, 19 December 2016,
p. 3.
[107]. Seafarers
Act, section 3.
[108]. Section
42 of the Legislation
Act 2003 provides that a legislative instrument can be subject to
disallowance if either a Senator, or Member of the House of Representatives,
moves a motion of disallowance within 15 sitting days of the day that the
legislative instrument is tabled in the relevant House of the Parliament.
[109]. Seafarers
Act, proposed subsections 43A(1) and (3).
[110]. Ibid.,
proposed subsections 43A(2).
[111]. Lander
v Comcare (2000) 102 FCR 11, [2000] FCA 339.
[112]. Ibid.,
paragraph 10.
[113]. Subitem
2(1), Part 2 of Schedule 3 to the Seafarers Legislation Bill.
[114]. Seafarers
Act, section 3.
[115]. Ibid.,
proposed subsection 5A(2).
[116]. Ibid.,
proposed paragraph 5B(2)(a).
[117]. Ibid.,
proposed paragraph 5B(2)(b).
[118]. Ibid.,
proposed paragraph 5B(2)(c).
[119]. Ibid.,
proposed paragraph 5B(2)(d).
[120]. Ibid.,
proposed paragraph 5B(2)(e).
[121]. Ibid.,
subsection 9(3).
[122]. Ibid.,
proposed subsection 9(3A).
[123]. Ibid.,
proposed subsection 9(3B).
[124]. Ibid.,
proposed subsection 9(3C).
[125]. Explanatory
Memorandum, Seafarers and Other Legislation Amendment Bill 2016, p. x.
[126]. Australian
Maritime Officers Union, Submission
to the Senate Education and Employment Legislation Committee, op. cit.,
p. 17.
[127]. Seafarers
Act, proposed subsections 39(7) and (7A), inserted by item 91
of Schedule 2 to the Seafarers Legislation Bill.
[128]. Ibid.,
proposed subsections 38(1) and (2), inserted by item 90 of
Schedule 2 to the Seafarers Legislation Bill. Item 49 of Part 3 in
Schedule 2 to the Seafarers Legislation Bill inserts the definition of the term
pension age into section 3 of the Seafarers Act.
[129]. Department
of Human Services (DHS), ‘Age
pension: eligibility basics’, DHS website,
12 April 2017.
[130]. HA
Hunt and P Barth, Compromise
and release settlements in workers’ compensation: final report, WE Upjohn
Institute for Employment Research, Kalamazoo, 2010, p. 1.
[131]. Seafarers
Act, subsection 45(1).
[132]. Ibid.,
proposed new definition of y[number
of years] in subsection 44(2).
[133]. Ibid.,
subsection 54(1).
[134]. Ibid.,
section 55.
[135]. Ibid.,
section 59.
[136]. Items
104, 108 and 112 of Part 3 in Schedule 2 to the Seafarers Legislation Bill.
[137]. Seafarers
Act, proposed subsection 59(4).
[138]. Ibid.,
proposed subsection 59(5).
[139]. Ibid.,
proposed paragraphs 59(6)(a) and (b).
[140]. Ibid.,
proposed paragraphs 59(6)(c).
[141]. Ibid.,
proposed subsections 59(8) and (9).
[142]. Seafarers
Safety, Rehabilitation and Compensation Authority (SSRCA), About us, SSRCA
website.
[143]. The
Commission’s role is set out in proposed Part 8 of the Seafarers Act which
is inserted by item 176 of Part 3 in Schedule 2 to the Seafarers
Legislation Bill.
[144]. For
example, items 136–143, 145, 147, 150–151 and 153 of the Seafarers
Legislation Bill.
[145]. SRC
Act, proposed paragraph 89RA(2)(a).
[146]. Ibid.,
proposed subsection 89RA(3).
[147]. Ibid.,
proposed paragraph 89RA(2)(c). Section 93 of the Seafarers Act
sets out compulsory insurance requirements for employers.
[148]. Ibid.,
proposed paragraph 89RA(2)(d).
[149]. Ibid.,
proposed subsection 89RA(5).
[150]. Ibid.,
proposed subsection 89RA(11).
[151]. Ibid.,
proposed subsection 89RA(12).
[152]. Ibid.,
proposed subsection 89RA(10).
[153]. Ibid.,
proposed subsection 89RA(17).
[154]. Seafarers
Act, section 77.
[155]. Ibid.,
subsections 78(1) and (2).
[156]. Ibid.,
subsection 78(4).
[157]. Ibid.,
proposed subsection 78(4), inserted by item 148 of Schedule 2 to the
Seafarers Legislation Bill.
[158]. Maritime
Labour Convention, done in Geneva 7 February 2006, [2013] ATS 29, (entered
into force for Australia and generally 20 August 2013).
[159]. International
Labour Organisation (ILO), ‘Seafarers
and their families ensured of protection in cases of abandonment, death or
long-term disability’, ILO website, 12 October 2016.
[160]. Items
162 and 163 of Part 3 in Schedule 2 to the Seafarers Legislation Bill.
[161]. The
imposition of strict liability means that a fault element does not need to be
satisfied, but the offence will not criminalise honest errors and a person
cannot be held liable if he, or she, had an honest and reasonable belief that
they were complying with relevant obligations.
[162]. Seafarers
Act, proposed section 94A, inserted by item 8 of Schedule 2
to the Seafarers Legislation Bill.
[163]. Ibid.,
proposed section 95A, inserted by item 9 of Schedule 2 to the
Seafarers Legislation Bill.
[164]. Proposed
subsection 95B(7) defines the term operator of the vessel as
(a) a person with overall general control and management of the vessel; or (b)
a person who has assumed responsibility for the vessel from a person with
overall general control and management of the vessel or a person who has a
legal or beneficial interest in the vessel.
[165]. Seafarers
Act, proposed section 95B, inserted by item 9 of Schedule 2
to the Seafarers Legislation Bill.
[166]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 8,
op. cit., p. 40.
[167]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 2, op. cit., pp. 45–46.
[168]. Ibid.,
p. 46
[169]. Items
4 and 5 of the table in section 2 of the Bill.
[170]. Item
175 in Part 3 of Schedule 2 to the Seafarers Legislation Bill.
[171]. Seafarers
Act, proposed section 104.
[172]. Northern
Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555, [1993] HCA 12.
[173]. Department
of Finance (DoF), RMF
100: guide to appropriations, DoF website, 25 January 2017.
[174]. Explanatory
Memorandum, Seafarers and Other Legislation Amendment Bill 2016, p. 39.
[175]. Seafarers
Act, proposed section 4A.
[176]. Review
of the Seacare scheme, op. cit., p. 83.
[177]. Australian
Government, ‘The
WHS Act’, Comcare website, 30 June 2016.
[178]. WHS Act,
section 17.
[179]. Australian
Government, ‘The
WHS Act’, op. cit.
[180]. WHS
Act, proposed subsection 12(8A), inserted by item 191 of
Schedule 2 to the Seafarers Legislation Bill.
[181]. Ibid.,
new definition of ‘regulator’ to be inserted in section 4 by item 190 of
Schedule 2 to the Seafarers Legislation Bill.
[182]. Maritime
Union of Australia (MUA), Submission
to the Senate Education and Employment Legislation Committee, op. cit.,
p. 31.
[183]. Parliament
of Australia, Safety,
Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill
2015 homepage, Australian Parliament website.
[184]. SRC
Act, subsection 4(1).
[185]. Section
42 of the Legislation
Act 2003 provides that a legislative instrument can be subject to
disallowance if either a Senator, or Member of the House of Representatives,
moves a motion of disallowance within 15 sitting days of the day that the
legislative instrument is tabled in the relevant House of the Parliament.
[186]. Subitem
61(2), Part 9 of Schedule 3 to the Seafarers Legislation Bill.
[187]. Offshore
Petroleum and Greenhouse Gas Storage Act, section 4.
[188]. OPGGS
Act, subsection 640(1).
[189]. Explanatory
Memorandum, Seafarers Safety and Compensation Levies Bill 2016, p. 7.
[190]. Items
13 and 14, Part 5 of Schedule 3 and item 1, Part 1 of Schedule 3 to
the Seafarers Legislation Bill.
[191]. Explanatory
Memorandum, Seafarers Safety and Compensation Levies Bill 2016, p. ii.
[192]. Clause
5 of the Levies Bill.
[193]. Clause
6 of the Levies Bill.
[194]. Clause
9 of the Levies Bill.
[195]. Subclause
6(3) of the Levies Bill.
[196]. Clause
7 of the Levies Bill.
[197]. Clauses
9 and 10 of the Levies Bill.
[198]. Explanatory
Memorandum, Seafarers Safety and Compensation Levies Bill 2016, p. i.
[199]. Ibid.
[200]. Clause
11 of the Levies Bill.
[201]. Subclause
12(1) of the Levies Bill.
[202]. Subclause
12(2) of the Levies Bill.
[203]. Clause
13 of the Levies Bill.
[204]. Explanatory
Memorandum, Seafarers Safety and Compensation Levies Collection Bill 2016,
p. ii.
[205]. Clause
4 of the Levies Collection Bill.
[206]. Clause
9 of the Levies Collection Bill.
[207]. Subclause
9(1) of the Levies Collection Bill.
[208]. The
imposition of strict liability will not criminalise honest errors and no person
can be held liable if he or she had an honest and reasonable belief that they
were complying with relevant obligations.
[209]. Clause
9 of the Levies Collection Bill.
[210]. Clause
6 of the Levies Collection Bill.
[211]. Clause
7 of the Levies Collection Bill. Note that the Commission may remit the
whole or part of a late payment penalty in certain circumstances.
[212]. Clause
8 of the Levies Collection Bill.
[213]. Clause
22 of the Levies Collection Bill.
[214]. Maritime
Industry Australia, Submission
to the Department of Employment, op. cit., p. 7.
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