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2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SEAFARERS AND OTHER LEGISLATION AMENDMENT BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment, Senator the Hon. Michaelia Cash)
Outline
OUTLINE
SEAFARERS AND OTHER LEGISLATION AMENDMENT BILL 2016
The Seacare scheme provides workers' compensation and work health and safety (WHS)
protections to a very small defined section of the Australian maritime industry. The scheme is
established by the Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act) and the
Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act), as well as two
levy Acts. The scheme generally only applies to Australian flagged vessels and foreign flagged
vessels with an Australian crew and operator that are engaged in interstate, international or
territorial trade or commerce. As of July 2015, the scheme was known to apply to 336 vessels
and 6,863 employees (a small portion of approximately 80,000 domestic seafarers in Australia).
The Seacare scheme commenced in 1993 and has not been substantively updated since this time,
despite changes in the profile of the Australian maritime industry, including to its employment
arrangements, workplaces and working conditions.
The Seafarers and Other Legislation Amendment Bill 2016 (Bill) will clarify the coverage of the
scheme, update the current workers' compensation and work health and safety arrangements and
improve the scheme's governance. The Bill also gives effect to recent changes to the Maritime
Labour Convention and makes minor amendments to broader Commonwealth workers
compensation and work health and safety laws.
The Seafarers Safety and Compensation Levies Bill 2016 and the Seafarers Safety and
Compensation Levies Collection Bill 2016 support this reform package by establishing new cost
recovery arrangements to fund the regulatory oversight of the Seacare scheme.
Coverage
The Bill inserts new provisions into the Seafarers Act to clarify the coverage of the Seacare
scheme while maintaining similar scope.
The current provisions of the Seafarers Act and the OHS(MI) Act cause significant uncertainty
for employers, employees and the Seacare scheme's regulators. The Federal Court's decision in
Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 (Aucote) significantly expanded coverage
of the scheme, but even before this, there had been considerable practicable difficulty
determining coverage.
Vessels can move in and out of coverage from voyage to voyage. This means vessels need to
have insurance cover to meet the state or territory and the national law.
The changing profile of vessels operating around Australia from predominately coastal and
international shipping to an increasing number of vessels involved in the offshore oil and gas
sector has added to this complexity in coverage.
The new coverage test is two tiered and removes the need to refer to the (repealed) Navigation
Act 1912 by incorporating relevant definitions into the Seafarers Act.
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Outline
The new test is:
(1) a vessel must be a 'prescribed vessel'; and
(2) the vessel must not be used wholly or predominantly for voyages or other tasks that are
within the territorial sea of a particular state or territory.
Employers and operators of vessels may apply to the Safety, Rehabilitation and Compensation
Commission (SRCC) to 'opt-in' or seek an exemption from the scheme.
The workers' compensation and work health and safety coverage of the scheme will be the same,
except:
vessels registered on the Australian International Shipping Register will not be covered
by the Seafarers Act, preserving current arrangements; and
minor adjustments will be made to the coverage of the Work Health and Safety Act 2011
(WHS Act) to avoid regulatory overlap with the Offshore Petroleum and Greenhouse
Gas Storage Act 2006, again preserving existing arrangements.
Workers' compensation changes
The Bill implements the recommendations of the Review of the Seacare Scheme Report (March
2013) by restoring the historic link between the Seacare scheme and broader Commonwealth
workers' compensation arrangements by updating the Seafarers Act to:
extend the definition of 'medical treatment' to include further types of compensable
treatment;
reduce the threshold for compensation for a permanent impairment that is a binaural
hearing loss from 10% to 5%;
change the level of contribution of employment to an injury that is a disease from a
'material' to a 'significant' degree; and
change the coverage of psychological injuries to exclude injuries suffered as a result of
'reasonable administrative action taken in a reasonable manner' instead of as a result of
'reasonable disciplinary action'.
The Seafarers Act will also be amended to ensure that persons in receipt of incapacity payments
can continue to receive those payments until they reach 'pension age', which is increasing as a
result of changes to the Social Security Act 1991, and align the Act with minimum benchmarks
to be set by the National Injury Insurance Scheme for workplace accidents. Mirror amendments
to equivalent provisions of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) are
also made by this Bill.
Work Health Safety
The outdated OHS(MI) Act will be repealed and the WHS Act will be extended to apply to the
Seacare scheme with some sector-specific amendments to that Act.
Maritime Labour Convention Changes
Amendments to the compulsory insurance arrangements for the scheme will also be made to
ensure Australia complies with new provisions of the Maritime Labour Convention due to come
into force for Australia on 18 January 2017.
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Outline
Governance
The Bill will also improve the scheme's governance arrangements by integrating the functions
currently performed by the Seafarers Safety, Rehabilitation and Compensation Authority
(Seacare Authority) into the Commonwealth workers' compensation scheme (Comcare scheme).
The Seacare Authority will be abolished and the functions split between Comcare and the SRCC.
Industry representation will be maintained by enabling the Chairperson of the SRCC to appoint
an advisory group, constituted of employee and employer representative(s), to provide support
and industry expertise to the SRCC and Comcare, as required. The Australian Maritime Safety
Authority's (AMSA) current work health and safety regulatory role will be maintained.
Other Amendments to the Work Health and Safety Act 2011
In addition to the amendments to the Seacare scheme the Bill includes amendments to the WHS
Act which are of a general application. These include
technical amendments to section 12 of the WHS Act to clarify the WHS Act applies to
'upstream duty holders' where the activity gives rise to a potential risk to workers cover
by the WHS Act;
the removal of the requirement on businesses to provide Comcare with an up to date list
of HSRs;
the replacement of the reference to giving 'directions' in a Provisional Improvement
Notice, with giving 'recommendations'; and
clarification that Judges and Heads of Mission are not 'officers' for the purpose of the
WHS Act.
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Financial Impact Statement
FINANCIAL IMPACT STATEMENT
N/A
Seafarers and Other Legislation Amendment i House of Representatives
Bill 2016
Regulation Impact Statement
Seacare Reforms
Regulation Impact Statement
September 2016
Seafarers and Other Legislation Amendment i House of Representatives
Bill 2016
Regulation Impact Statement
List of Abbreviations and Defined Terms
AAT Administrative Appeals Tribunal
ABS Australian Bureau of Statistics
ACT Australian Capital Territory
Advisory Group The Seacare Advisory Group
AMSA Australian Maritime Safety Authority
The Department Department of Employment
EY Review Ernst & Young Actuarial Business Consultants Pty Ltd, Evaluation of the
Seacare Scheme, May 2005
FPSO Floating Production Storage and Offloading vessel
HSR Health and Safety Representative
Levy Act Seafarers Rehabilitation and Compensation Levy Act 1992 (Cth)
Levy Collection Act Seafarers Rehabilitation and Compensation Levy Collection Act 1992 (Cth)
Model WHS Laws Model work health and safety laws developed by Safe Work Australia
Navigation Act Navigation Act 1912
NDIS National Disability Insurance Scheme
NIIS National Injury Insurance Scheme
NSW New South Wales
NT Northern Territory
OHS Act Occupational Health and Safety Act 1991 (Cth)
OHS(MI) Act Occupational Health and Safety (Maritime Industry) Act 1993 (Cth)
OHS(MI)(NS) Occupational Health and Safety (Maritime Industry) (National Standards)
Regulations Regulations 2003 (Cth)
OHS(MI) Regulations Occupational Health and Safety (Maritime Industry) Regulations 1995 (Cth)
PCBU Person Conducting a Business or Undertaking
PIN Provisional Improvement Notice
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Regulation Impact Statement
PwC PricewaterhouseCoopers
QLD Queensland
RIS Regulation Impact Statement
SA South Australia
SWA Safe Work Australia
Seacare Authority Seafarers Safety, Rehabilitation and Compensation Authority
Seacare Code Seacare Authority Code of Practice
Seafarers Act Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Social Security Act Social Security Act 1991 (Cth)
SRC Act Safety, Rehabilitation and Compensation Act 1988 (Cth)
SRCC Safety, Rehabilitation and Compensation Commission
Stewart-Crompton Review of the Seacare Scheme, Mr Robin Stewart-Crompton, March 2013
Review
TAS Tasmania
The Fund Safety Net Fund
WA Western Australia
WHS Act Work Health and Safety Act 2011 (Cth)
WHS Regulations Work Health and Safety Regulations 2011 (Cth)
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Regulation Impact Statement
Executive Summary
The Seacare scheme is a workers' compensation and work health and safety scheme covering a small
defined segment of the Australian maritime industry. The Seacare scheme is underpinned by the
Seafarers Rehabilitation and Compensation Act 1992 (Cth) (Seafarers Act) and the Occupational
Health and Safety (Maritime Industry) Act 1993 (Cth) (OHS(MI) Act).
Two independent reviews of the Seacare scheme (the "Ernst & Young Actuarial Business Consultants
Pty Ltd Evaluation of the Seacare Scheme") (EY Review), conducted in 2005, and the "Review of the
Seacare Scheme by Mr Robin Stewart-Crompton" (Stewart-Crompton Review), conducted in 2012-
13) have highlighted that it needs widespread reform. Its work health and safety arrangements are
outdated and require alignment with contemporary work health and safety law and practice. In
addition, the Seacare scheme is not sufficiently funded to be adequately administered and
regulated; coverage of the Seacare scheme is unclear; and its governance arrangements are
regarded as inefficient.
Since the commencement of the Seacare scheme in 1993, there have been important changes in the
profile of the Australian maritime industry, including to its employment arrangements, workplaces
and working conditions, health care and rehabilitation and technology. The Seacare scheme has not
kept pace with these changes and has come under significant pressure as a result.
The changes to the profile of the maritime industry have created issues with the coverage of the
Seacare scheme for governments, regulators, employers and employees. Scheme participants have
significant difficulty determining with certainty whether a ship and its employees are covered by the
Seacare scheme. This lack of certainty has resulted in a large number of disputed claims.
The Seacare scheme's coverage issues have been exacerbated by the Full Federal Court decision in
Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 (the Aucote decision). That decision had the
effect of expanding the coverage of the Seacare scheme from around 340 ships (as of July 2015) to
potentially over 10,000 ships, which would have significant cost implications for the Government
and maritime industry employers. The Seacare Authority and the Government have taken actions to
confine the coverage of the Seacare scheme following the decision.
The OHS(MI) Act, which is the Seacare scheme work health and safety legislation, is considerably
out-of-date and is not aligned with the model work health and safety laws (model WHS laws) that
operate in most of Australia. Because of this, the OHS(MI) Act is not proving effective in securing the
health and safety of seafarers.
The governance arrangements applying to the Seacare scheme require reform to address
inefficiencies and provide more effective oversight of the Seacare scheme. The Seafarers Safety,
Rehabilitation and Compensation Authority (Seacare Authority) consists of seven part-time members
who meet on a quarterly basis. It does not have the staff or financial resources to effectively oversee
the Seacare scheme. The Australian Maritime Safety Authority (AMSA), which is the WHS
inspectorate for the Seacare scheme under the OHS(MI) Act, does not receive any appropriation to
undertake this role. The lack of resourcing for the Seacare Authority (and Comcare to assist the
Authority) and AMSA limits their ability to effectively perform their regulatory functions for the
Seacare scheme.
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Regulation Impact Statement
During the development of proposed reforms to the Seacare scheme, three options were
considered:
1. maintain the Seacare scheme in its current form (status quo),
2. abolish the Seacare scheme and transfer WHS and workers' compensation responsibility to the
state and territories, and
3. reform of the Seacare scheme.
Under Option 1, the Seafarers Act and OHS(MI) Act would remain in place. The Seacare Authority
would continue with its current role and functions, supported by Comcare. AMSA would continue as
the WHS inspectorate. The existing inadequate resourcing arrangements for the Seacare Authority
and AMSA would continue. The administrative action and legislative instruments made following the
Federal Court's Aucote decision will expire if not extended, which would significantly expand the
coverage of the Seacare scheme with substantial cost implications for the Government.
Option 1 is not preferred as there is an urgent need to provide certainty to stakeholders over the
coverage of the Seacare scheme following the Federal Court's Aucote decision. There is also a clear
need to update the Seacare scheme's work health and safety regulation.
Under Option 2, the Seafarers Act, OHS(MI) Act and other Acts relating to the Seacare scheme would
be repealed to abolish the Seacare scheme. Responsibility for seafarers' workers' compensation and
work health and safety would be transferred to state and territory governments.
Option 2 is not preferred. It is not likely to provide any significant actual regulatory benefits to
employers because they will be required to comply with state and territory workers' compensation
and work health and safety legislation. This option would take time to implement and due to legacy
workers' compensation claims the Seafarers Act would still need to be in operation for a number of
years. Union stakeholders are strongly opposed to abolishing the Seacare scheme. This option is not
preferred at this time given the long time it will take to achieve and stakeholder opposition.
Under Option 3, the Seacare scheme would be reformed through the introduction of amendment
legislation. Reform of the Seacare scheme would broadly involve clarifying the coverage of the
Seacare scheme while retaining the same scope of coverage, extending the operation of the WHS
Act to the Seacare scheme, making overdue updates to the Seafarers Act, transferring the Seacare
Authority's functions to the Safety, Rehabilitation and Compensation Commission (SRCC) and
Comcare and introducing a cost-recovery levy.
Option 3 is the preferred option. It addresses the most urgent problems with the current Seacare
scheme. The reform option imposes a minimal regulatory cost on Seacare scheme employers, which
is largely a one-off cost of transitioning to the WHS Act, while providing overall benefits from
improved work health and safety outcomes.
Option 3 is expected to result in costs to Seacare scheme employers arising from the need to train
officers and employees to meet their new WHS duties. It is also expected to result in costs for
Seacare scheme employees from the need to obtain high risk work licences to perform certain
classes of high risk work. However, clarifying the coverage of the Seacare scheme is expected to
provide a benefit by reducing administration costs for Seacare scheme employers.
Overall, while uncertain, Option 3 is estimated to have an overall regulatory cost of $0.095 million
per year, averaged over ten years, with regulatory costs of $0.081 million per year for employers
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Regulation Impact Statement
and $0.014 million per year for employees. There are no regulatory costs or benefits for community
organisations. This regulatory cost is offset by savings generated through changes to workplace
gender reporting.
While Option 3 generates some regulatory cost, the proposed changes to work health and safety
legislation are expected to provide non-regulatory benefits by reducing the number, and overall
cost, of workplace injuries. While uncertain, the overall benefits from improved safety outcomes are
estimated to be between $1.050 million and $3.750 million per year across the Seacare scheme,
with the main beneficiary being workers who would avoid costs arising from workplace injuries.
The Department has engaged in significant consultation with maritime industry employers and
unions, insurers and other stakeholders over proposed reform to the Seacare scheme. This includes
consultation undertaken as part of and immediately following the Stewart-Crompton Review,
consultation with stakeholders to test possible reforms for the Seacare scheme and a preview of the
draft reform legislation. The Seacare reforms broadly reflect the findings of the Stewart-Crompton
Review and the specific reform proposal incorporates feedback provided during consultations on the
reform option.
The Seacare reform proposal will be implemented through the passage of legislation through the
Parliament. Comcare will work closely with the Seacare Authority and SRCC to ensure a smooth
transition of the Authority's functions to the SRCC. AMSA will work with stakeholders to provide
information and advice on work health and safety changes.
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Regulation Impact Statement
Problem Statement
This section provides information on the Seacare scheme legislative framework and issues that
impact on employers and employees covered by the Seacare scheme. It outlines significant issues
with the operation of the current Seacare scheme, highlighting the urgent need to reform certain
aspects of the Seacare scheme.
What is the Seacare scheme?
The Seacare scheme is a national work health and safety and workers' compensation scheme for
small defined segment of the Australian maritime sector. The Seacare scheme is underpinned by a
legislative framework comprising the Seafarers Act and the OHS(MI) Act.
The Seafarers Act establishes a privately underwritten workers' compensation scheme for a defined
segment of the maritime sector. Employers covered by the Seafarers Act are required to maintain an
insurance policy with an approved insurer to cover workers' compensation claims made under the
Act. The Seafarers Act also establishes the Seacare Authority to oversee the operation of the Act.
The OHS(MI) Act provides a work health and safety legislative framework for largely the same part of
the maritime industry as the Seafarers Act. The OHS(MI) Act confers broad oversight functions on
the Seacare Authority and prescribes AMSA as the work health and safety inspectorate for the
Seacare scheme. The OHS(MI) Act enables the Occupational Health and Safety (Maritime Industry)
Regulations 1995 (OHS(MI) Regulations), the Occupational Health and Safety (Maritime Industry)
(National Standards) Regulations 2003 (OHS(MI)(NS) Regulations) and two Codes of Practice.
The Seacare scheme is supported by the Seafarers Safety Net Fund (the Fund) which operates as a
safety net 'employer' to provide workers' compensation payments to employees where there is no
employer against whom a claim can be made (for example, because an employer becomes bankrupt
or insolvent or is wound up or ceases to exist). The Fund is maintained by a levy on employers,
supported by the Seafarers Rehabilitation and Compensation Levy Act 1992 (the Levy Act) and the
Seafarers Rehabilitation and Compensation Levy Collection Act 1992 (the Levy Collection Act).
Two independent reviews of the Seacare scheme (the EY Review and the Stewart-Crompton Review)
have highlighted that it needs widespread reform. The reviews found the Seacare scheme's workers'
compensation and work health and safety arrangements are outdated and require alignment with
contemporary law and practice. The reviews also found that the Seacare scheme is not sufficiently
funded to be adequately administered and regulated, coverage of the Seacare scheme is unclear and
its governance arrangements are inefficient.
Coverage of the Seacare scheme is unclear
The Seacare scheme is confined in scope. It has generally been understood to cover employers and
seafarers on vessels which are engaged in interstate, international or intra-territorial trade or
commerce.
The Seacare Authority's 2014-15 Annual Report noted there were 6,863 seafarers and 33 employers
covered by the Seacare scheme. There were 336 vessels covered, consisting of 207 vessels from the
offshore sector, 88 vessels from the blue-water sector, 30 vessels from the dredging sector, and
11 vessels from other sectors (passenger or tourism for example).
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Regulation Impact Statement
There are longstanding issues regarding the coverage of the Seacare scheme that have created
problems for governments, regulators, employers and seafarers. Both the Seafarers Act and the
OHS(MI) Act define coverage with reference to the repealed Navigation Act 1912 (Navigation Act)
and the engagement of vessels in certain types of trade or commerce. Due to the changing profile of
the Australian maritime industry since the commencement of the Seafarers Act and OHS(MI) Act and
the unclear nature of some terms used in those Acts, assessing whether a vessel is covered by the
Seacare scheme can be difficult. It is currently the case that vessels, and the employees working on
those vessels, can be covered by the Seacare scheme for some voyages but not for others,
depending on the specific nature of each voyage.
The lack of clarity over coverage has significant administrative impacts for maritime industry
employers. The Seafarers Act requires employers to hold a policy of workers' compensation
insurance. Employers not covered by the Seafarers Act are covered by state and territory workers'
compensation scheme. A large number of factors need to be taken into account when determining
whether a vessel is covered by the Seafarers Act including the flag and ownership of a vessel, the
nationalities of seafarers on-board (in particular, if at least half of the seafarers are Australian), the
nature of trade and commerce of each voyage and whether the vessel falls within specified
categories in the Seafarers Act.
This causes significant administrative burden for maritime industry employers. What makes it
particularly difficult for employers is the fact that the current coverage test is determined on a
voyage by voyage basis. This means a vessel can be covered by the Seacare scheme for one voyage
and not covered for its next voyage. For these vessels, employers may also be required to purchase
workers' compensation insurance under the relevant state and territory workers' compensation
scheme.
There are significant implications for employers who fail to obtain the correct workers'
compensation coverage. If an employer ensures coverage for a vessel under a state or territory
workers' compensation scheme only and it is later found after an employee is injured, that the
vessel was covered by the Seacare scheme, the employer would be required to pay compensation to
the employee, in addition to the cost of the insurance policy that did not cover the liability.
While the lack of clarity over coverage creates administrative burden and other potential costs for
employers, these are not understood to be significant enough to affect overall employment or
business activity in the maritime industry.
The lack of clarity over coverage also has significant impacts for maritime industry employees. When
an injured employee submits a claim for workers' compensation, an employer (or their insurer) must
determine if the injury occurred while the vessel on which the employee worked was covered by the
Seacare scheme or not.
While it is difficult to make definitive comparisons of benefits across different workers'
compensation jurisdictions, the Seacare scheme is generally viewed as being more generous
compared to state and territory workers' compensation schemes. The doubt over coverage creates
incentives for employees to make claims under the Seafarers Act, rather than under state or
territory workers' compensation schemes. Conversely, it creates incentives for employers (or their
insurers) to reject claims under the Seafarers Act on the basis that the employee is covered under
state schemes. Following rejection of a claim, an employee may seek a reconsideration of a decision,
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Regulation Impact Statement
file an application to the Administrative Appeals Tribunal (AAT) and eventually take the matter to
court.
The lack of clarity over coverage and different incentives of employee and employers manifests itself
through a large number of disputed claims in the Seacare scheme. Claims that are disputed through
the AAT and the courts can be costly and time consuming for both Seacare employers and
employees. As Table 1 shows, the claim disputation rate, being the percentage of claims that result
in an application to the AAT being filed, is five times higher for the Seacare scheme than for other
workers' compensation schemes across Australia.
Table 1: Seacare scheme claim disputation rate
Performance indicator Seacare scheme Seacare scheme Australia 2013-14
2012-13 2013-14 performance
performance performance
Claim disputation rate 26.7% 28.4% 5.4%
(number of AAT
applications as a % of
claims lodged)
th
Source: Seacare Annual Report 2013-14, Comparative Performance Monitoring Report 17 Edition, Safe Work
Australia
The lack of certainty over the coverage of the Seacare scheme has been exacerbated by a decision
handed down by the Full Court of the Federal Court in Samson Maritime Pty Ltd v Aucote [2014]
FCAFC 182 in December 2014. The Full Court held that the Seafarers Act covered seafarers employed
by a trading, financial or foreign corporation on a 'prescribed ship', including vessels engaged in
intrastate trade. This interpretation meant that potentially over 10,000 Australian registered vessels
could be covered by the Seacare scheme.
The Seafarers Rehabilitation and Compensation and Other Legislation Amendment Act 2015 received
Royal Assent on 26 May 2015. It restored the coverage of the Seacare scheme as it was understood
to be prior to the Aucote decision, but only up to the date the Act received Royal Assent.
Administrative exemptions have been issued by the Seacare Authority and the Minister for
Employment has made declarations to confine the coverage of the Seacare scheme to what it was
understood to be prior to the Aucote decision from the date of Royal Assent. However, these are
time limited, with the Seacare Authority's latest exemptions due to expire in March and April 2017
and the Minister's declarations sunsetting in June 2017.
Workers' compensation insurance for the Seacare scheme is expensive compared to state and
territory workers' compensation schemes. If the Seacare scheme coverage operated consistent with
the Aucote decision, maritime industry employers currently covered by state or territory workers'
compensation schemes would be required to obtain workers' compensation insurance under the
more expensive Seacare scheme.
Work health and safety arrangements are outdated
The OHS(MI) Act was based on the Occupational Health and Safety Act 1991 (Cth) (OHS Act) and was
broadly similar to occupational health and safety laws that applied across all states and territories at
that time.
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Regulation Impact Statement
In 2012, the OHS Act was replaced by the Work Health and Safety Act 2011 (WHS Act). The WHS Act
reflects the Commonwealth's implementation of the model WHS laws, developed by Safe Work
Australia (SWA) and adopted in all Australian jurisdictions except Victoria and Western Australia.
The OHS(MI) Act has not been substantially amended since its enactment and as a result is not
consistent with the WHS Act or model WHS laws upon which the WHS Act is based. The OHS(MI) Act
is now considerably out-of-date, contributing to the poor safety performance of the Seacare
scheme.
Seacare scheme serious injury claims are higher than for other industries
Table 2, below, shows information on the incidence of serious injury claims in the Seacare scheme
compared to the Australian average. In 2012-13, the last full year for which data is available, the
incidence rate of serious injury claims for the Seacare scheme (19.4 claims per 1000 employees) was
significantly higher than the Australian average (11.0 claims per 1000 employees).
Table 2: Comparison of the Seacare Scheme and Australia key performance indicators
Performance indicator 2009-10 2010-11 2011-12 2012-13
Seacare Scheme
Serious personal injuries 30.3 30.9 25.2 19.4
(per 1,000 workers)
Australia
Serious personal injuries 12.4 12.2 12.1 11.0
(per 1,000 workers)
Source: Comparative Performance Monitoring Report 17th Edition, Safe Work Australia
Graph 1 shows that the incidence rate of serious injury claims for the Seacare scheme is also
generally higher than that of other high risk industries such as construction, mining and agriculture.
While the serious injury incidence rate for the Seacare scheme trended downwards from 2010-11 to
2012-13, the serious injury incidence rate for the Seacare scheme can be quite volatile due to its
relatively small size.
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Regulation Impact Statement
Graph 1: Comparison of serious injury claims per 1000 employees between the Seacare scheme
and other industries
35
30
25
Seacare
20
Agriculture
15 Mining
10 Construction
5
0
2009-10 2010-11 2011-12 2012-13
th
Source: Safe Work Australia 17 Comparative Performance Monitoring Report, Seacare Annual Reports
Seacare scheme serious injury claims are higher than for other jurisdictions
Graph 2, below, shows the incidence rate of all accepted workers' compensation claims (claims per
1,000 employees) by jurisdiction. It shows that while there has been a reduction in injury rates
across all jurisdictions (including the Seacare scheme), there has generally been a greater reduction
in serious injury rates in jurisdictions that have adopted the model WHS laws compared to Western
Australia, which has not adopted the model WHS laws. Victoria (which has also not adopted the
model WHS laws) was excluded from the analysis.
Graph 2: Comparison of serious injury claims per 1000 employees between the Seacare scheme
and other jurisdictions
50
45
Claims per 1000 employees
40
35
30
25
20
15
10
5
0
2002-03Q1
2002-03Q3
2003-04Q1
2003-04Q3
2004-05Q1
2004-05Q3
2005-06Q1
2005-06Q3
2006-07Q1
2006-07Q3
2007-08Q1
2007-08Q3
2008-09Q1
2008-09Q3
2009-10Q1
2009-10Q3
2010-11Q1
2010-11Q3
2011-12Q1
2011-12Q3
2012-13Q1
2012-13Q3
2013-14Q1
2013-14Q3
NSW/QLD/NT/ACT/CMWTH TAS/SA WA
The analysis in Graph 3 shows that there was a statistically significant change in the trend decrease
of the injury incidence rate in jurisdictions that enacted the model WHS laws following enactment on
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Regulation Impact Statement
1 January 2012. Injury incidence rates have trended downward more quickly since the introduction
of the model WHS laws.
Graph 3: Analysis of injury rates for model WHS law jurisdictions prior to and following
implementation of model WHS laws
For comparison, Graph 4, below, shows the injury incidence rate for the Seacare scheme, which is
not modelled in the charts above, over a similar period of time. The Seacare scheme showed a
higher injury incidence rate compared to other jurisdictions. While Seacare injury incidence rates
have decreased in recent years, they are well above those in jurisdictions that have adopted the
model WHS laws.
Graph 4: Analysis of injury rates for the Seacare scheme
60
55
Claims per 1000 employees
50
45
40
35
30
25
20
15
10
5
0
Note: The Seacare injury incidence rate can be highly volatile due to the small size of the Seacare scheme.
Workers' compensation arrangements are outdated
Since the commencement of the Seafarers Act, the Australian maritime industry, workplace
arrangements, health care and rehabilitation, technology, and community expectations have
changed significantly. The Seafarers Act has not kept pace with these developments. The Seafarers
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Regulation Impact Statement
Act has also not kept pace with changes to other workers' compensation legislation across Australia,
including the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The retirement age in the
Seafarers Act, at which point compensation benefits are no longer payable, has not been updated to
reflect the increase in age of eligibility for the age pension in the Social Security Act 1991 (Social
Security Act).
Both the EY Review and the Stewart-Crompton Review recommended greater alignment between
the Seafarers Act and the SRC Act, consistent with the original intent when the Seafarers Act
commenced. The Stewart-Crompton Review noted that there is an imperative to ensure the Seacare
scheme is up-to-date and benefits from new initiatives in national workers' compensation.
The Stewart-Crompton Review found the costs of insuring under the Seacare scheme are high
compared to other workers' compensation Seacare schemes. It claimed some of the reasons for this
are the relatively high injury incidence in the Seacare scheme and comparative difficulty in ensuring
effective return to work for seafarers.
There are significant barriers preventing effective return to work for seafarers under the Seacare
scheme, in particular the limited opportunities for graduated return to work or alternative duties.
Incentives for return to work in the Seacare scheme are limited, with weekly benefits for total
incapacity paid at 100 per cent for the first 45 weeks of incapacity and 75 per cent thereafter
(capped at 150 per cent of the average weekly ordinary time earnings).
Table 3, below, shows the return to work performance and workers' compensation insurance
premium rates of the Seacare scheme compared to the average of other Australian workers'
compensation schemes.
Table 3: Seacare scheme workers' compensation performance
Performance Seacare Seacare Australia
indicator scheme performance scheme performance performance (2013-
(2012-13) (2013-14) 14)
Injury management and rehabilitation
Durable return to work 59% 64% 77%
rate (% of injured
workers who have
returned to work and
still at work 8-9
months after injury)
Scheme sustainability
Premium rates 2.93% 2.88% 1.48%
(average five day
deductible premium
equivalent rate)
th
Source: Seacare Annual Report 2013-14; Comparative Performance Monitoring Report 17 Edition, Safe Work
Australia
The small size and industry-specific nature of the Seacare scheme are also likely factors contributing
to high premiums.
The Seafarers Act provides for compensation payments to cease when an injured employee reaches
65 years of age (or after 12 months if the employee was injured after reaching 64 years of age).
Sixty-five was the standard retirement age and the age of eligibility for the age pension for males
under the Social Security Act when the Seafarers Act was enacted in 1992.
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The Social Security Act has recently been amended to increase the age of eligibility for the age
pension. If no amendments are made to the Seafarers Act, there will be a gap between an
employee's workers' compensation entitlements ceasing and their eligibility for the age pension
commencing.
Commonwealth, state and territory governments have agreed to introduce a National Injury
Insurance Scheme (NIIS) as part of the National Disability Insurance Scheme (NDIS). The NIIS will
provide minimum benchmarks for lifetime care and support for people who have sustained a
catastrophic injury in the workplace. Without amendment to the Seafarers Act, the Seacare workers'
compensation scheme could be inconsistent with the minimum benchmarks of the NIIS once they
are agreed.
Seacare scheme governance is inefficient
The Seacare Authority is established by the Seafarers Act. It has broad responsibilities to oversee the
operation of the Seafarers Act and the OHS(MI) Act. The OHS(MI) Act specifies AMSA as the work
health and safety inspectorate for the Seacare scheme.
The Seacare Authority is a non-corporate Commonwealth entity, but does not have any staff. The
Authority consists of seven part-time members, including an independent Chairperson and Deputy
Chairperson, the Chief Executive Officer of AMSA, two members representing employers and two
members representing employees. Authority members meet on a quarterly basis. Comcare assists
the Authority with the performance its functions under an arrangement contained in the SRC Act.
Many functions of the Seacare Authority for the Seacare scheme are the same as or similar to
functions of the SRCC or Comcare for the Comcare scheme. It is inefficient to retain separate entities
to monitor these schemes. The Seacare Authority also does not have the capacity to effectively
monitor the work health and safety and return to work performance of Seacare scheme participants
or administer its workers' compensation arrangements. In contrast, the SRCC has a strong track
record at regulating self-insurers under the SRC Act.
Seacare scheme administration and regulation is not adequately funded
The Seacare Authority does not receive any appropriation from the Government to perform its
functions for the Seacare scheme. Comcare receives an annual appropriation of around $400,000 to
provide the Seacare Authority with secretariat and administrative support to perform its functions.
However, this appropriation does not cover Comcare's full costs of providing assistance to the
Seacare Authority.
Likewise, AMSA does not receive any appropriation to undertake its OHS(MI) Act function as the
work health and safety inspectorate for the Seacare scheme.
There is no legislative power under the Seafarers Act or OHS(MI) Act for the Seacare Authority or
AMSA to collect levies to fund the performance of their regulatory functions for the Seacare scheme.
AMSA currently cross-subsidises these functions through levies collected for other purposes from
ships not necessarily covered by the Seacare scheme.
It is estimated that the combined unfunded costs to Comcare and AMSA in managing the Seacare
scheme under the current arrangements are around $1.6 million. This lack of resources for the
Seacare Authority (and Comcare to assist the Authority) and AMSA limits their ability to ensure the
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effective operation of Seacare workers' compensation and work health and safety arrangements and
enforce work health and safety laws.
Both the EY Review and Stewart-Crompton Review noted that the limited resources of the Seacare
Authority and AMSA are likely to limit their ability to carry out their functions under the Seafarers
Act and OHS(MI) Act. Both reviews made recommendations to increase funding for the Seacare
Authority and AMSA.
Objectives of Government Action
The Government's objectives for reform of the Seacare scheme are to:
clarify the coverage of the Seacare scheme by having clear coverage rules that operate
consistently to minimise jurisdictional uncertainty and enable maritime industry employers and
employees to easily determine if they are covered by the Seacare scheme,
provide modern and effective work health and safety laws for maritime industry employers and
workers that adequately protect workers against risks to their health and safety at work,
make long overdue and necessary updates to the Seacare workers' compensation
arrangements,
provide efficient and effective governance arrangements for the Seacare scheme, and
ensure that bodies responsible for Seacare scheme administration and regulation are
adequately resourced to effectively monitor workers' compensation and work health and safety
arrangements and enforce compliance with work health and safety laws.
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Policy options
There are three broad options considered in this RIS.
1. Maintain the Seacare scheme in its current form (status quo).
2. Abolish the Seacare scheme and transfer responsibility for workers' compensation and work
health and safety coverage of Seacare scheme participants to state and territory governments.
3. Reform the Seacare scheme by making amendments to workers' compensation, work health
and safety, governance and cost recovery arrangements.
These options are outlined in more detail the following sections.
Option 1 - Status quo
This option involves no change to the current arrangements.
The Seafarers Act and OHS(MI) Act would not be amended. The Seacare scheme workers'
compensation and work health and safety arrangements would continue with significant differences
compared to other Commonwealth and state and territory workers' compensation and work health
and safety schemes.
The coverage of the Seacare scheme would continue to be confined by the making of legislative
instruments by the Minister for Employment and exemptions issued by the Seacare Authority, or
would significantly expand if these were not continued.
The Seacare Authority would continue to oversee the Seacare scheme, assisted with the
performance of its functions by Comcare, while AMSA would continue to be the work health and
safety inspectorate. Both the Seacare Authority and AMSA would continue without any additional
funding for the performance of their regulatory functions.
Option 2 - Abolishing the Seacare scheme
This option involves repealing the Seafarers Act, OHS(MI) Act, Levy Act and Levy Collection Act
together to abolish the Seacare scheme. Without the Seafarers Act or OHS(MI) Act, responsibility for
workers' compensation and work health and safety coverage of Seacare scheme participants would
transfer to state and territory governments.
Option 3 - Reform of the Seacare scheme
This option would involve introducing a number of Bills into Parliament to reform the Seacare
scheme.
The Seafarers Act would be amended to:
clarify the scope of coverage of the Seacare scheme and provide clear coverage rules that
operate consistently to minimise jurisdictional uncertainty,
align the retirement age, at which workers' compensation benefits cease being payable, with
the age of eligibility for the age pension in the Social Security Act,
accommodate expected minimum benchmarks of the NIIS,
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ensure continued compliance with the International Labour Organization Maritime Labour
Convention, and
incorporate a number of necessary amendments previously made to the SRC Act that were not
reflected through corresponding amendments to similar provisions in the Seafarers Act.
The OHS(MI) Act would be repealed and the WHS Act would be extended to the Seacare scheme.
The Seacare Authority's statutory functions would be transferred to the SRCC and Comcare to
provide more efficient and effective governance of the Seacare scheme. AMSA would remain the
work health and safety inspectorate.
Finally, a mechanism to implement a cost recovery levy and fees would be introduced. This would
enable the Government to recover the costs of the SRCC, Comcare and AMSA undertaking their
regulatory functions for the Seacare scheme.
These reform proposals are outlined in more detail below.
Coverage
To address the Seacare scheme's longstanding coverage issues, a new coverage test is proposed. The
new coverage test would retain substantially the same scope of coverage - as it was understood to
be prior to the Aucote decision - but provide greater certainty to maritime industry representatives
over when a vessel and its employees are, or are not, covered by the Seacare scheme. The new test
would also reduce jurisdictional uncertainty by ensuring that vessels are continually covered, or not
covered, by the Seacare scheme rather than moving in and out of the Seacare scheme depending on
the particular voyage being undertaken.
The Seacare scheme would cover all Australian registered vessels and all foreign vessels with a
majority Australian crew, except for those vessels which are wholly or predominantly engaged in
voyages and other tasks within the coastal waters of a single state or territory.
There would be exclusions for recreational vessels, inland waterways vessels, fishing vessels, tourism
vessels, floating production storage and offloading vessels (FPSOs) (from workers' compensation
coverage only) and government vessels (so long as they are crewed by Government employees). The
new test would also treat vessels operating in the Northern Territory in the same way as vessels
operating in any state. Currently, all 'prescribed ships' operating within a territory are covered by the
Seacare scheme, unless they have an exemption from the Seacare Authority.
To provide flexibility, the ability for the Minister to make legislative instruments to declare that a
vessel is, or is not, a 'prescribed ship' will be retained. A mechanism to allow maritime industry
employers not covered by the Seacare scheme to 'opt in' to the coverage of the Seacare scheme
through an application to the SRCC will also be introduced. This will enable employers with some
vessels in the Seacare scheme and some in state or territory schemes to elect to have all of their
vessels covered by the Seacare scheme.
Work Health and Safety
At present, to avoid regulatory overlap, the WHS Act does not apply to any vessel or structure to
which the OHS(MI) Act applies. To align work health and safety arrangements in the Seacare scheme
with the WHS Act, and the model WHS laws upon which the WHS Act is based, the OHS(MI) Act
would be repealed and the Commonwealth WHS Act amended to extend its application to the
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Seacare scheme (other than facilities located in offshore areas), to the exclusion of state or territory
work health and safety laws.
As a consequence of repealing the OHS(MI) Act and extending the application of the WHS Act to the
Seacare scheme, the Work Health and Safety Regulations 2011 (WHS Regulations) and approved
Codes of Practice made under the WHS Act would also apply, although their implementation would
be delayed for the Seacare scheme.
The duties and requirements in the WHS Act and WHS Regulations are broad based and are capable
of applying to a range of sectors, industries and businesses. The section of the maritime industry
that is covered by the Seacare scheme is not significantly different from other industries that are
covered by general Commonwealth, state or territory work health and safety laws to justify the
continuation of separate work health and safety arrangements. Maritime industry employers not
currently covered by the OHS(MI) Act already operate under general work health and safety laws in
the states and territories.
Health and Safety duties
The WHS Act provides a similar duty-based regime to the OHS (MI) Act, which aims to minimise risks
to the health and safety of persons employed on vessels while they are at work. The OHS(MI) Act
requires an operator of a 'prescribed ship' or 'prescribed unit' to take all reasonable steps to protect
the health and safety at work of seafarers.
The WHS Act requires a 'person conducting a business or undertaking' (PCBU) to ensure, so far as is
reasonably practicable, the health and safety of workers. The duty to ensure health and safety
requires the person to eliminate or otherwise minimise risks to health and safety so far as is
reasonably practicable. This includes first considering what can be done - that is, what is possible in
the circumstances for ensuring health and safety - and then whether it is reasonable in the
circumstances to do all that is possible. The standard of 'reasonably practicable' is not new in work
health and safety legislation and there is extensive case law and guidance surrounding its
application.
Table 4 outlines how the primary and upstream duties within the WHS Act would apply to PCBUs
operating vessels. Table 5 outlines how duties would apply to individuals, including officers of a
PCBU, workers and other persons at a workplace.
Key differences between the OHS(MI) Act and the WHS Act
Tables 6 to 13 outline key differences between the operation of the WHS Act and the OHS(MI) Act.
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Table 4: Primary and upstream duties of care
Duty WHS Act How the duty would apply in the Seacare scheme
Duty to ensure the A PCBU must ensure, so far as is reasonably practicable, the health PCBUs (operators) will owe duties to the extent that business or
health and safety of and safety of workers engaged, or caused to be engaged by the undertaking is being conducted on a vessel.
workers person, and workers whose activities in carrying out the work are
State work health and safety laws would not apply to PCBUs to the
influenced or directed by the person, while workers are at work in
Section 19(1) extent that the business or undertaking is being conducted on a
the business or undertaking.
vessel.
State work health and safety laws would apply to stevedoring
companies that load and unload a ship, including if that requires
sending workers on-board the vessel.
Duty to ensure health A PCBU must ensure, so far as is reasonably practicable, that the PCBUs (operators) will owe duties to the extent that business or
and safety of other health and safety of other persons is not put at risk from work undertaking is being conducted on a vessel.
persons carried out as part of the conduct of the business or undertaking.
Duties would extend to persons on and off the vessel that may be put
Section 19(2) at risk from work carried out on the vessel.
State work health and safety laws would not apply to PCBUs.
Duty of persons with The person with management or control of a workplace must Person with management or control of a workplace means a PCBU to
management or control ensure, so far as is reasonably practicable, that the workplace, the the extent that the business or undertaking involves the management
of a workplace means of entering and exiting the workplace and anything arising or control, in whole or in part, of the workplace.
from the workplace are without risks to the health and safety of any
Section 20 Applies to PCBUs with management or control of a vessel.
person.
State work health and safety laws would not apply to the PCBU.
Duty of persons with The person with management or control of fixtures, fittings or plant Applies to PCBUs with management and control of fixtures, fittings or
management or control at a workplace must ensure, so far as is reasonably practicable, that plant on a vessel.
of fixtures, fittings or the fixtures, fittings and plant are without risks to the health and
State work health and safety laws would not apply to the PCBU.
plant at a workplace safety of any person.
Section 21
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Table 4: Primary and upstream duties of care
Designers, A PCBU who is a designer, manufacturer, importer or supplier of a These duties apply to PCBUs that design, manufacture, import or
manufacturers, plant, structure or substance that is to be used, or could reasonably supply plant, structures or substances used on vessels.
importers or suppliers be expected to be used, at a workplace must ensure all workplace
As PCBUs might supply the same or similar products to vessels and
of plant, structures or activity relating to it including its handling or construction, storage,
onshore workplaces, state and Commonwealth WHS laws will apply
substances dismantling and disposal is, so far as is reasonably practicable, to be
concurrently to PCBUs that design, manufacture, import, or supply
without risks to health or safety when used for its intended purpose.
Sections 22-25 plant, structures or substances.
Duties of people A PCBU who installs, constructs or commissions plant or structures These duties apply to PCBUs that install, construct or commission
installing, constructing must also ensure, so far as is reasonably practicable, all workplace plant or structures on vessels.
or commissioning plant activity relating to the plant or structure including its
As PCBUs might install the same or similar products to vessels and
or structures decommissioning or dismantling is without risks to health or safety.
onshore workplaces, state and Commonwealth work health and safety
Section 26 laws will apply concurrently to PCBUs that install plant, structures or
substances.
Table 5: Duties on Individuals
Duty WHS Act How the duty would apply in the Seacare scheme
Duty of officers An officer of the person conducting the business or undertaking Would apply to officers within the meaning of section 9 of the
must exercise due diligence to ensure that the person conducting Corporations Act 2001. An officer would be a person who makes, or
Section 27
the business or undertaking complies with that duty or obligation. participates in making, decisions that affect the whole or a substantial
part of the business or undertaking (i.e. a member of the Board), not
just the part of a business or undertaking being conducted by a
particular vessel (i.e. the master of a ship would not be an officer).
Duty of workers While at work, workers must take reasonable care for their own Applies to all workers carrying out work on the vessel including
health and safety and that of others who may be affected by their contractors and subcontractors, employees of labour hire companies,
Section 28
actions or omissions. They must also comply, so far as they are apprentices and trainees.
reasonably able, with any reasonable instruction given by the PCBU
to allow the PCBU to comply with work health and safety laws, and
cooperate with any reasonable policy or procedure of the PCBU
relating to health or safety at the workplace that has been notified
to workers.
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Table 5: Duties on Individuals
Duty of other persons A person at a workplace must take reasonable care of their own Applies to other persons on the vessel, including passengers and
at the workplace health and safety and that of others who may be affected by their workers of stevedoring companies.
actions or omissions. They must also comply, so far as they are
Section 29
reasonably able, with any reasonable instruction that is given by the
PCBU to comply with work health and safety laws.
Table 6: Additional Duties
Duty WHS Act How the duty would apply in the Seacare scheme
Duty of Officers Under the WHS Act, an officer of a PCBU must exercise due diligence There is no similar duty in the OHS(MI) Act. While operators have
to ensure the PCBU complies with its health and safety duties. This primary duties in the OHS(MI) Act, officers of the operator do not
duty relates to the strategic, structural, policy and key resourcing have specific duties.
decisions.
In the maritime industry, 'officers' are more akin to on-shore
managers and would not normally work on-board vessels
Duty of other persons Any person at a workplace, including customers and visitors, must There is no similar duty in the OHS(MI) Act, however a common law
at the workplace take reasonable care of their own health and safety and that of duty would apply.
others who may be affected by their actions or omissions. They
must also comply, so far as they are reasonably able, with any
reasonable instruction that is given by the PCBU to comply with
work health and safety laws.
Duty on designers The WHS Act places a duty on designers of plant, substances and There is no similar duty in the OHS(MI) Act.
structures.
Duties of persons There is no similar duty in the WHS Act, however the WHS Act Under the OHS(MI) Act, there is a specific duty for a person engaged
engaged in loading or imposes duties on PCBUs that supply, install etc. to a workplace. in the loading or unloading of a ship/unit to take all reasonable steps
unloading a ship/unit State work health and safety laws would apply to stevedoring to ensure that the ship/unit is not loaded or unloaded in such a way
companies that load and unload a ship, including if that requires that it is unsafe for others or constitutes a risk to their health and
sending workers on-board the ship. safety.
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Table 7: Offences and penalties
Offence/Penalty WHS Act OHS(MI) Act
Breaches of the Act Breaches of duties of care are criminal offences. Breaches of right of The OHS(MI) Act also has criminal offences for breaches of duties of
entry provisions are subject to civil remedies, consistent with the care, but there are no civil penalties under the OHS(MI) Act.
Fair Work Act 2009.
Civil proceedings can also be brought in relation to discriminatory
conduct for a prohibited reason under section 112 of the Act.
Penalties The maximum monetary penalty is $3,000,000 for a corporation and The maximum monetary penalty is 1000 penalty units (currently
$600,000 for an individual. $170,000) for operators or 50 penalty units (currently $8,500) for
employees. The maximum period of imprisonment (for specified
Breaches of duty of care may also incur imprisonment. The
breaches) is six months, but this does not apply for a serious breach of
maximum period of imprisonment available for the most serious
a duty of care.
breach of the Act is five years.
Sentencing options In addition to fines and custodial sentences, the WHS Act provides Sentencing under the OHS(MI) Act is limited to monetary penalties.
for remedial orders, adverse publicity orders, training orders,
injunctions, orders for restoration, work health and safety project
orders, and the release of an offender under terms of a court-
ordered WHS undertaking.
Infringement notices The WHS Act contains provisions to establish an infringement notice The OHS(MI) Act does not contain provisions establishing an
scheme. The Commonwealth has not established such a scheme. infringement notice scheme.
Enforceable The WHS Act provides that the Regulator may accept a written There is no ability for the regulator to accept enforceable undertakings
undertakings undertaking given by a person in connection to a contravention or under the OHS(MI) Act.
alleged contravention by a person of this Act (Part 11 section 216).
The Regulator may also apply to a court for an order if a person
contravenes an enforceable undertaking (section 220)
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Table 8: Incident notification
Requirement WHS Act OHS (MI) Act
Incident notification A PCBU must ensure that the regulator is notified immediately after There are similar provisions in the OHS(MI) Act, although there is no
becoming aware that a notifiable incident (death of a person, or requirement to notify the regulator immediately. The meaning of the
serious injury or illness of a person, or a dangerous incident) arising terms and timing and form of reports is prescribed in regulations
out of the conduct of the business or undertaking has occurred. The (currently 4 hours, or as soon as reasonably practicable afterwards,
Act also outlines what is a serious injury or illness and what is a for notification).
dangerous incident.
Table 9: Duties to consult, cooperate and coordinate
Duty WHS Act OHS(MI) Act
Duty to consult with The WHS Act places a duty on the PCBU to consult etc., so far as is There is no statutory requirement under the OHS(MI) Act to consult
other duty holders reasonably practicable, with all other persons who have a duty in with other duty holders, however consultation may be necessary in
relation to the same matter. order for duty holders to discharge their duties under the Act.
This requires duty holders with shared responsibilities to work
together to protect the health and safety of workers and other
persons.
Duty to consult workers The WHS Act places a duty on a PCBU to consult, so far as is The OHS(MI) Act places a duty on the operator of a prescribed ship or
and their reasonably practicable, with workers. The duty is not limited to unit to take all reasonable steps to develop an OHS policy in
representatives employees but extends to contractors. consultation with involved unions.
The WHS Act also prescribes what is required for consultation
purposes and when it is required.
This requires PCBUs to consult with workers and their
representatives over work health and safety matters and give
workers a reasonable opportunity to express their views, raise work
health and safety matters and contribute to decisions on work
health and safety matters.
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Table 10: Representation and participation
Requirement WHS Act OHS(MI) Act
Establishment of work The WHS Act provides that a work group may be determined for Under the OHS(MI) Act, a request to an operator to enter into
groups workers engaged in two or more businesses or undertakings. consultations to establish a designated work group in respect of
employees of the operator on a prescribed ship or unit may be made
Due to the broad definition of worker, workers other than
by an employee or union (if there is one involved). An operator has
'employees' such as contractors and labour hire workers can be
the right to enter into consultations at any time if they believe that a
members of a work group.
designated work group should be varied. The designated work group
A PCBU must if asked by a worker include the worker's is comprised only of employees.
representative in negotiations about the workgroup.
Health and Safety The WHS Act provides that a worker may ask that the PCBU facilitate Under the OHS(MI) Act, only one HSR may be selected for each
Representatives (HSRs) the conduct of an election for one or more HSRs to represent designated work group and holds office for two years.
workers.
A HSR holds office for a period of three years.
Training of HSRs The WHS Act provides that a PCBU must, if requested, allow the HSR The OHS(MI) Act requires a HSR to undertake a course of training
to attend training (currently 5 days) that is approved by the accredited by the Seacare Authority but does not specify the number
Regulator (Comcare); and is a course that the HSR is entitled to of days.
attend; and that it is chosen by the HSR in consultation with the
PCBU.
Power to issue The WHS Act provides HSRs with the power to issue PINs provided A HSR may issue a PIN to a person in command.
Provisional that the HSR has consulted the person receiving the PIN.
While a HSR must be trained, they may issue PINs before undertaking
Improvement Notices
The HSR cannot issue a PIN unless the HSR has completed relevant training.
(PINs)
training.
PINs may be issued by leaving the notice with the person with
management and control of the workplace to which the notice
relates, or by delivering the notice at the person's usual place of
business.
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Table 10: Representation and participation
Issue resolution The WHS Act provides that parties to a work health and safety issue There are no specific provisions for issue resolution in the OHS(MI)
must make reasonable efforts to achieve a timely, final and effective Act, although there are provisions dealing with disagreements in
resolution of the issue in accordance with an agreed procedure, or if relation to the establishment or variation of work groups and
there is no agreed procedure, the default procedure prescribed in directions to stop unsafe work.
the Regulations.
Where an issue cannot be resolved after reasonable efforts have
been taken, the issue can be transferred to the Regulator to arrange
for an inspector to attend the workplace to assist in resolving the
issue.
Right of worker to The WHS Act provides that a worker may cease, or refuse to carry The OHS(MI) Act allows HSRs to direct that unsafe work cease in
cease unsafe work out, work if the worker has a reasonable concern that to carry out certain circumstances but does not provide individual workers with
the work would expose the worker to a serious risk to health or that right.
safety emanating from an immediate or imminent exposure to a
hazard.
Table 11: Discriminatory, coercive and misleading conduct.
Requirement WHS Act OHS(MI) Act
Prohibition of The WHS Act has wide ranging provisions that prohibit a person The OHS(MI) Act includes similar provisions prohibiting discriminatory
discriminatory, coercive directly or indirectly engaging in discriminatory conduct for a conduct, but 'discriminatory conduct' and 'prohibited reason' are
or misleading conduct prohibited reason. more narrowly defined.
Criminal or civil action may be taken in respect of this provision. Reverse onus of proof applies. A contravention may incur a financial
Reverse onus of proof applies in this provision. penalty, but penalties are significantly lower under the OHS(MI) Act
compared to the WHS Act.
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Table 12: Union right of entry
Requirement WHS Act OHS(MI) Act
Workplace entry by The WHS Act confers powers on authorised representatives of There are no right of entry provisions in the OHS(MI) Act, although
permit holders unions (work health and safety permit holders) to enter workplaces operators are subject to right of entry provisions in the Fair Work Act.
for OHS purposes.
A work health and safety entry permit holder may enter a workplace
to inquire into a suspected contravention of the WHS Act (without
notice), or to consult and advise relevant workers who wish to
participate in the discussions on work health and safety matters
(with at least 24 hours' notice of entry).
Table 13: Review of decisions
Requirement WHS Act OHS (MI) Act
Internal review The WHS Act provides for a two-stage review process of certain The OHS(MI) Act does not provide for internal review but provides for
decisions (e.g. issuing of statutory notices by an inspector), starting external review by the Fair Work Commission.
with internal review followed by external review by the Fair Work
Commission.
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Regulations
The OHS(MI) Regulations set out administrative matters relating to the elections for HSRs, forms for
PINs and other notices and procedures and forms for notifying and reporting incidents. The
(OHS(MI)(NS) Regulations set out requirements relating to hazardous substances (limited to
scheduled carcinogenic substances), manual handling and confined spaces.
The WHS Regulations specify the way in which some duties under the WHS Act must be met and
prescribe procedural or administrative requirements to support the WHS Act. They cover a wide
range of matters relating to WHS, including the matters covered by the OHS(MI)(NS) Regulations
outlined above.
As a consequence of repealing the OHS(MI) Act and extending the WHS Act to apply to the Seacare
scheme, the Regulations made under the WHS Act and the approved Codes of Practice will also
apply, although their operation may be modified (for example, phased in) or removed for the
Seacare scheme.
Like the WHS Act, the requirements and guidance in the WHS Regulations are broad based and are
capable of applying to a range of sectors, industries and businesses. Some of the WHS Regulations
will not be relevant to maritime activities and will have no effect on Seacare scheme participants.
Most of the chapters of the WHS Regulations will be relevant for Seacare scheme participants.
The WHS Regulations will be phased in over a period of time. Only WHS Regulations that have broad
application or are similar to those that apply currently will be applied from 1 July 2017.
Further discussions will be held with Seacare stakeholders over the next two years to discuss the
phasing in of the WHS Regulations, with a view to them commencing from 1 July 2019.
Codes of Practice
Codes of Practice provide practical guidance on how to meet the standards set out in the WHS Act
and Regulations. They are admissible in court proceedings as evidence of what is reasonably
practicable in the circumstances for a duty holder to meet their obligations under the WHS laws.
They can also be referred to by an inspector when issuing an improvement or prohibition notice.
There are two Codes of Practice under the OHS(MI) Act. The Seacare Authority Code of Practice
1/2000 (Seacare Code) adopts in identical terms the Australian Offshore Support Vessel Code of Safe
Working Practice and the Code of Safe Working Practice for Australian Seafarers issued by AMSA.
The Approved Code of Practice for Manual Handling (Maritime Industry) provides practical guidance
relating to managing the risks arising from manual handling in a maritime environment.
There are 23 approved Codes of Practice made under the WHS Act, which adopt model WHS Codes
agreed by a majority of work health and safety Ministers. Some Codes of Practice provide guidance
relevant to all industries (e.g. How to Manage Work Health and Safety Risks) or on issues covered in
existing Seacare Codes (Hazardous Manual Tasks), while others will not be relevant to maritime
activities (Demolition Work). By repealing the OHS(MI) Act and extending the WHS Act to the
Seacare scheme, current Codes of Practice made under the OHS(MI) Act would cease to have effect,
while Codes of Practice made under the WHS Act would apply to the Seacare scheme.
Similar to the WHS Regulations, only WHS Codes of Practice that have broad application will be
applied from 1 July 2017. Further discussions will be held with Seacare stakeholders over the next
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two years to discuss the phasing in of the remaining WHS Codes of Practice, with a view to them
commencing from 1 July 2019.
Workers' Compensation
Addressing Inconsistencies between the Seafarers Act and SRC Act
The Seafarers Act was aligned with the provisions in the SRC Act when it was first passed in 1992 but
has not kept pace with the workers' compensation changes in in the SRC Act.
The Stewart-Crompton Review recommended changes to the Seafarers Act to give effect to a list of
inconsistencies identified by Comcare between the Seafarers Act and the SRC Act. The
Stewart-Crompton Review also listed entitlement provisions in the Seafarers Act that had been
identified separately during the Review as needing to be made consistent with the SRC Act.
Most of these inconsistencies would be addressed under this option. This would include clarifying
the meaning of some terms, e.g. that an 'action for non-economic loss' is not limited to formal legal
proceedings but can include settlement negotiations, and the meaning of 'medical treatment' and
'superannuation scheme'. These clarifications would not have any financial impact on employers or
workers, but would assist both with interpreting certain provisions of the Seafarers Act.
It is proposed that the Seafarers Act threshold for compensation for hearing loss will be reduced
from 10% to 5% binaural the permanent impairment of hearing loss, consistent with the SRC Act.
The limit for reasonable funeral expenses would also be increased from $5,838.09 to $10,735.29 to
be consistent with the SRC Act.
The workers' compensation changes, including both addressing inconsistencies with the SRC Act and
other technical changes, are listed below.
Table 14: Seafarers Act amendments
Definitions
'action for non-economic loss' Clarifies an action for non-economic loss is not restricted to the formal
-s3 institution of proceedings but can include processes like settlement
negotiations and consultations.
'medical treatment' - s 3 Enables legislative rules to be made to include a wider range of
compensable medical treatment.
'superannuation scheme' Extends the definition of superannuation scheme to include retirement
savings accounts, reflecting updated approaches to superannuation
-s 3
arrangements.
Benefit changes
Payment of medical related Enables reimbursement of medical related expenses (at the direction of the
expenses - s 28 employee) to the medical treatment provider or the employee if they have
paid for the treatment.
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Reduction in threshold for Reduces the qualifying threshold for a permanent impairment that is a
binaural hearing loss to binaural hearing loss from 10% to 5% to align with the SRC Act and other
improve access to jurisdictions.
compensation for injuries
resulting in permanent
impairment - s 40
Increase to death benefit Aligns the maximum amount of compensation payable in respect of funeral
expenses with the SRC Act.
- s 30(2)
Improvements to Seacare scheme integrity
Clarification that dependents Clarifies that where an employee's injury results in death, the dependants of
of deceased employees have the deceased employee are not prevented from bringing an action against
access to common law the employer, even where the employee may have made a previous
remedies against the employer election.
of the deceased
- s 54
Clarification of employees Clarifies that an election by an employee to institute an action or proceeding
ability to bring action for non- against their employer or another employee does not prevent the employee
economic loss from doing any other thing that constitutes an action for non-economic loss.
- s 55
Clarification of requirements Aligns provisions with the SRC Act by substituting references
in relation to proceedings and to 'proceedings' with the broader term of 'claims'. 'Claims' encompasses
consequences of election and settlements resulting from negotiation whether or not that claim or action
payment of damages progressed to the formal institution of proceedings or was made at common
law.
- ss 56-60
Changes to eligibility thresholds
Injury which is a disease - Increases threshold to align with the SRC Act. Employment must contribute
contribution of employment to disease suffered by employee to a 'significant degree' rather than
to shift from the 'material 'material degree'.
degree' to a 'significant
This measure is likely to be opposed by some stakeholders but is intended to
degree' - s 3 and new s 5B
form part of a balanced approach to updating the Seacare scheme to align
with the Comcare scheme and a number of the States.
Psychological injuries- The Seafarers Act currently excludes compensation for injuries as a result of
exclusions - shift from 'reasonable disciplinary action' or an employee's 'failure to obtain a
'reasonable disciplinary action' promotion, transfer or benefit'. This definition will be replaced with the
to 'reasonable administrative concept of 'reasonable administrative action taken in a reasonable manner'.
action' A new section will also be added providing a non-exhaustive list of the
actions which may constitute 'reasonable administrative action'. This will
- new s 5A
align with the SRC Act.
This broader exclusion is not anticipated to have a significant impact
because of the low number of claims for psychological injury in the sector.
Other technical changes
Updates to references to other Updates references to other Commonwealth legislation - the Child Support
Commonwealth legislation - s (Registration and Collection) Act 1988, the Social Security Act, and the
135 Family Law Act 1975 - to reflect current practice regarding the treatment of
compensation payments for the purposes of assignment and attachment.
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Removal of redundant References to "industry panel", "Seafarers Engagement Centre" and
references "industry trainee" will be removed from provisions.
Administrative Appeals Clarifies that the AAT may order claimants costs where determination about
Tribunal - Costs - s 91 eligibility for compensation is reconsidered by a determining authority on its
own motion and proceedings are rendered abortive.
Age pension
It is proposed that the Seafarers Act be amended to accommodate recent amendments to the age of
eligibility for the age pension in the Social Security Act, and any future amendments, by replacing
references to specific ages with references to 'pension age'. This would ensure that the age at which
injured employees cease to be eligible to receive workers' compensation will align with the age at
which they are eligible to receive the age pension.
Attendant Care for Catastrophic Injuries
The Seafarers Act would be amended to allow for the introduction of the National Injury Insurance
Scheme (NIIS), which will provide minimum benchmarks for lifetime care and support for employees
who have sustained a catastrophic injury in the workplace. The amendments would enable caps on
attendant care and household services to be removed for employees with a catastrophic injury.
The new provision would not come into effect until the benchmarks are set and rules have been
made defining the meaning of 'catastrophic injury'.
Journey Claims
The Seafarers Act would be amended to provide that an injury suffered by an employee while
travelling at the direction or request of their employer, for the purpose of their employment will not
be treated as having arisen out of, or in the course of, their employment, in the circumstances set
out. These circumstances include where for a personal or domestic reason:
the employee delayed commencing the journey;
the employee used a route that was not direct; or
there was an interruption in the journey.
The exception to this is that an employee may delay or interrupt their journey with the written
agreement of their employer, provided that the delay or interruption is not more than 72 hours.
Cost Recovery Levy and Fees
Governments generally recoup costs of work health and safety schemes by requiring participants to
financially contribute to the cost of the system under which they are being regulated, whether
through application fees, regulatory levies, directly paying the regulator when investigations are
undertaken or workers' compensation premiums. However, the Seacare scheme does not require
Seacare scheme participants to financially contribute to the cost of being regulated by the Seacare
scheme.
The existing Levy Act and Levy Collection Act provide for the collection of a Safety Net Fund Levy
from Seacare scheme employers. Levy amounts are paid into the Safety Net Fund (the Fund), which
provides compensation for injured employees whose employer has defaulted on compensation
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liabilities. The levy is calculated based on the number of seafarer berths on the first day of each
quarter.
Under the reform option, a mechanism would be introduced to enable the Government to charge a
levy to recover the SRCC, Comcare and AMSA's costs for undertaking their regulatory functions for
the Seacare scheme.
It is proposed that the Levy Act and Levy Collection Act will be repealed and replaced with new Acts.
The new Acts will provide a mechanism to charge and collect both the existing Safety Net Fund levy
(to be renamed the Seafarers' Insurance Levy) and a new cost recovery levy. The Safety Net Fund
levy will initially be set at its existing level ($15 per seafarer berth). The cost recovery levy will
initially be set at $0. Following consulation with industry stakeholders, the Government will
determine if a levy should be charged and, if so, at what level it should be set.
The Seafarers Insurance Levy and cost recovery levy (when charged) would be calculated and
collected in the same way as the existing Safety Net Fund levy (calculated per seafarer berth on the
first day of a quarter).
Cost recovery fees would also be introduced to recover costs incurred by AMSA, the SRCC and
Comcare for a limited range of services provided directly to Seacare scheme participants, such as
processing applications for exemptions from the Seacare scheme. Fees will be collected by the entity
providing the service.
Governance
On 15 December 2014, as part of its Smaller Government Reform Agenda, the Government
announced its intention to transfer the statutory functions of the Seacare Authority to the SRCC.
A direct transfer of the Seacare Authority's functions to the SRCC would result in the SRCC
performing certain functions under the Seafarers Act that are performed by Comcare, rather than
the SRCC, under the SRC Act. It would not be appropriate or efficient for the SRCC to perform
functions for the Seacare scheme that it does not perform for the Comcare scheme. To address this
issue, it is proposed that these functions of the Authority be transferred directly to Comcare, rather
than the SRCC.
The current SRCC membership includes:
• an independent Chair,
• three representatives of unions,
• a representative of the Commonwealth,
• a representative of licensees,
• a representative of members and former members of the Defence Force,
• a representative of Australian Capital Territory public sector employers,
• the Chief Executive Office of Safe Work Australia, and
• a member with qualifications or experience relevant to the SRCC's functions.
It is proposed that the membership of the SRCC not be amended to include representatives of
maritime industry or unions. However, to ensure that maritime industry representatives have an
opportunity to provide advice and contribute to decision making affecting the Seacare scheme, the
Chairperson of the SRCC will be empowered to establish a Seacare Advisory Group (the Advisory
Group).
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The Advisory Group would include individuals representing Seacare employers and maritime unions.
Its role would be to provide advice to the SRCC and Comcare on matters affecting the operation of
the Seacare scheme, including the granting of opt-in declarations and exemptions from coverage,
the amount of any cost recovery levy and the development of Codes of Practice.
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Impact Analysis
This section outlines the impact and non-regulatory benefits and costs of each option on Seacare
scheme employers, employees and the Government.
Option 1 - Status Quo
This option does not impose any additional regulatory cost on Seacare scheme employers or others.
Seacare scheme participants continue with existing arrangements with which they are familiar.
However, this option does nothing to address the problems with the Seacare scheme. Opportunities
to achieve more efficient and effective oversight of the Seacare scheme and benefits through
improved work health and safety outcomes and greater clarity over the coverage of the Seacare
scheme are lost.
As per Australian Government policy, the impacts and regulatory costs of options 2 and 3 are
determined relative to this option.
Option 2 - Abolish the Seacare scheme
Work Health and Safety
If the OHS(MI) Act was repealed, employers would no longer have to comply with the specific duties
and regulatory requirements imposed by the OHS(MI) Act and regulations made under that Act.
However, they would be required to comply with similar duties and regulatory requirements after
transferring to coverage by state and territory work health and safety legislation.
Most states and territories have work health and safety legislation based on the model WHS laws,
which is expected to provide superior safety outcomes to the OHS(MI) Act. It is to be expected that
employers and employees would benefit from improved safety outcomes by transitioning from the
OHS(MI) Act to state and territory work health and safety legislation based on the model WHS laws.
There would be fewer injuries to employees, resulting in lower costs for employers (and their
insurers) from workers' compensation for injured workers and costs of replacing injured workers.
Workers would also benefit from reduced injury incidence through greater income from working
than what they would receive through workers' compensation while injured, elimination of costs
from workplace injuries that are not covered by workers' compensation and significantly improved
quality of life from not suffering a serious injury.
Since the Commonwealth WHS Act is also based on the model WHS laws, employers and employees
would be expected to achieve the same benefits from improved safety outcomes after transferring
to coverage by state and territory work health and safety laws as they would after transferring to the
Commonwealth WHS Act (as proposed in Option 3).
Workers' Compensation
If the Seafarers Act was repealed, employers would no longer be required to obtain workers'
compensation insurance from a private sector insurer or pay workers' compensation under the
Seafarers Act. They would not be required to perform functions associated with managing claims for
workers' compensation under the Seafarers Act. They would also not be required to provide
information to the Seacare Authority about workers' compensation insurance arrangements or
employee numbers for the purpose of the Safety Net Fund levy.
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Employers would transfer to state and territory workers' compensation schemes, which have similar
requirements to the Seafarers Act for employers to obtain workers' compensation insurance and pay
compensation, manage claims and provide information to a regulator.
On average, insurance premiums are lower in state and territory schemes than in the Seacare
scheme, although premiums for maritime industry employers may be higher than average given the
high risk nature of the work. There is likely to be a long-term overall benefit for Seacare employers
from repealing the Seafarers Act and moving into state and territory workers' compensation
schemes from paying lower premiums to obtain workers' compensation insurance. There may also
be a benefit for employers who currently are required to have separate insurance coverage to meet
legal obligations under both Commonwealth and state workers' compensation laws.
While it is difficult to make definitive comparisons of benefits across different workers'
compensation jurisdictions, the Seacare scheme is generous compared to state and territory
workers' compensation schemes (especially compared to states where the total amount paid in
weekly compensation payments is capped). Some employees may experience a reduction in
workers' compensation benefits under state and territory workers' compensation schemes,
compared to what they would have received under the Seacare scheme. The overall amount of this
reduction has not been quantified because of the complexities of calculating differences in
compensation amounts, including weekly compensation and permanent impairment compensation,
between the Seacare scheme and each state and territory scheme.
Economic factors affecting the Australian maritime industry, in particular employers in the current
Seacare scheme, include domestic demand for transported goods (both domestically produced
goods and imported goods), international demand for domestically produced goods (including goods
produced with the assistance of vessels) and costs (labour and workers' compensation costs).
While this option is expected to provide an overall benefit to employers from reduced workers'
compensation insurance costs (from transferring to state and territory workers' compensation
Seacare schemes and improved safety outcomes), in isolation of any changes to broader economic
factors affecting the Australian maritime industry or other costs, this option is not expected to have
any significant impact on the size of the Australian maritime industry, the nature of the industry or
employment opportunities in the industry.
Option 3 - Reform of the Seacare scheme
Coverage
Clarifying coverage as proposed would have limited financial impact on employers since no changes
to the scope of coverage are proposed and only limited changes to the test for determining coverage
are proposed. While the proposed changes would remove coverage for 'prescribed ships' operating
in the Northern Territory (unless they meet other coverage criteria), this is not expected to have any
significant impact on the coverage of the Seacare scheme since a number of vessels operating solely
within the Northern Territory maintain exemptions from the Seacare scheme.
Employers (both in and outside of the Seacare scheme) and employees would benefit from clearer
coverage provisions that make it easier for them determine if they are covered by the Seacare
scheme, and need to obtain insurance under the Seacare scheme, or not. This would be expected to
reduce costs for employers from determining coverage for their vessels and reduce the number of
claims that are disputed over coverage matters.
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Benefits are outlined further in the Regulatory Costs chapter. This proposal is not expected to have
any broader effects on the Australian maritime industry or Seacare employers, but will address a
current administrative burden of Seacare employers and a number of other maritime industry
employers.
Work Health and Safety
Impacts of the WHS Act on Seacare Employers and Workers
Extending the WHS Act to the Seacare scheme would be expected to have significant overall benefits
for employers and employees compared to retaining the OHS(MI) Act by improving safety outcomes.
The WHS Act comprises modern, up to date work health and safety laws and facilitates the
implementation of modern work health and safety practices. The OHS(MI) Act, on the other hand,
contains outdated laws that were designed for workplaces of the early 1980s and 1990s.
The WHS Act encourages safety leadership in workplaces. It provides a positive duty on officers to
exercise due diligence on work health and safety matters. This duty is not included in the OHS(MI)
Act. To ensure compliance with this duty, Seacare employers would be expected to offer training to
their officers (as defined in the WHS Act, not necessarily seafarers whose position includes the word
'officer') to ensure that they understand their duty and exercise due diligence on work health and
safety matters within their organisation.
Seacare employers would also be expected to offer short training to all workers to ensure that they
have an understanding of their duties under the WHS Act and how the WHS Act operates in
comparison to the OHS(MI) Act. The duties of workers are broadly similar to those of the OHS(MI)
Act, so the training is not expected to be extensive.
The regulatory costs to employers of training officers and other staff on their duties under the WHS
Act and the operation of the WHS Act are outlined further in the Regulatory Costs chapter.
There are no provisions for right of entry for union officials in the OHS(MI) Act. Under the proposal
to expand the coverage of the WHS Act to include the Seacare scheme, union officials representing
Seacare employees who hold a right of entry permit would be able to exercise right of entry on
Seacare vessels for work health and safety purposes to inquire into a suspected contravention of the
WHS Act or to consult and advise workers. This is not expected to impose regulatory costs for
employers since union officials can already exercise right of entry on Seacare vessels under the Fair
Work Act 2009.
The WHS Act includes a number of differences from the OHS(MI) Act that would be expected to
influence employer and employee behaviour to improve safety outcomes, without creating
additional regulatory costs.
The WHS Act facilitates shared responsibility for health and safety matters by requiring duty holders
to, so far as is reasonably practicable, consult, cooperate and coordinate activities with each other.
This would explicitly require Seacare employers to consult etc. with other duty holders where they
share responsibility for a health and safety matter. This requirement is not expected to have any
regulatory impact on employers as currently under the OHS(MI) Act employers would be required to
consult etc. with other duty holders to discharge their duty..
Compared to the OHS(MI) Act, the WHS Act includes substantially higher maximum penalties for
breaches of work health and safety duties. The maximum penalty under the WHS Act is $3 million
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for a corporation and $600,000 for an individual, compared to $180,000 for operators and $9,000 for
employees under the OHS(MI) Act. Breaches of duties of care may also incur imprisonment under
the WHS Act. These substantially higher maximum penalties under the WHS Act would be expected
to be much more effective at deterring employer non-compliance with work health and safety duties
compared to the penalties in the OHS(MI) Act and contribute substantially to improving safety
outcomes.
The WHS Act also provides for a wider range of tools for facilitating a graduated approach to
compliance and enforcement, compared to the OHS(MI) Act. Under the OHS(MI) Act, only monetary
penalties can be ordered against employers. In addition to fines and custodial sentences, the WHS
Act provides for remedial orders, adverse publicity orders, training orders and other sentences to
enforce compliance with work health and safety laws. These alternative sentencing methods would
be expected to enhance the ability of the courts to enforce compliance with work health and safety
laws and encourage ongoing compliance, improving safety for workers.
The WHS Act also provides additional mechanisms to achieve compliance with work health and
safety laws. It would enable AMSA to accept enforceable undertakings from employers in
connection to a contravention (or alleged contravention) of work health and safety laws to enforce
compliance. This mechanism would be expected to enhance the ability of AMSA enforce compliance
with work health and safety laws, improving safety for workers, while reducing the need for AMSA
to prosecute employers for alleged contraventions to achieve compliance.
The benefits from improved safety outcomes expected from expanding the coverage of the WHS Act
to include the Seacare scheme are quantified below in a later section.
There are other benefits for employers from the proposal to expand the coverage of the WHS Act to
include the Seacare scheme. Adopting work health and safety laws based on the model WHS laws
that apply in most jurisdictions1 would enable Seacare employers to implement national policies and
procedures applying to all their employees Australia-wide, including employees that work on-board
vessels not covered by the Seacare scheme and employees that are not seafarers.
The proposal would also have a number of direct impacts on employees and other workers covered
by the Seacare scheme, particularly in relation to representation and participation in work health
and safety matters. Under the OHS(MI) Act, one employee may be elected as a HSR for a designated
work group. The elected employee HSR must be provided with training to perform their role, which
is funded by Seacare employers. A HSR may issue a PIN to a person in command in relation to safety
issues on-board a vessel.
Under the proposal to expand the coverage of the WHS Act to include the Seacare scheme, more
than one employee HSR may be elected, but there will be no automatic requirement for an elected
HSR to receive employer-funded training. Instead, an elected HSR may request training from the
employer. Following such a request, the employer must organise for the HSR to receive training and
fund the training. Only a HSR that has received training may issue a PIN.
These impacts are not expected to introduce any regulatory costs for employers or employees.
Current HSRs who have received training would be considered to be trained under the WHS Act
(there would not be any need for them to receive additional training). It is not expected that these
1
Victorian OHS laws are substantially aligned with the model WHS laws. Western Australia is in the process of
substantially aligning their OHS laws with the model WHS laws.
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changes would result in an additional number of HSRs seeking employer-funded training compared
to existing arrangements. Employees in a work group will be able to elect additional HSRs, which
may assist with improving safety, without adding regulatory costs for employers since it is only
compulsory for an employer to arrange training for an employee if they request it.
Under the OHS(MI) Act, HSRs can direct that unsafe work cease, but there is no right for individual
workers to cease unsafe work. As a result of expanding the coverage of the WHS Act to the Seacare
scheme, employees would have a right to cease, or refuse to carry out, work if they have a
reasonable concern that carrying out the work would present a serious health and safety risk. This
change may improve safety outcomes for workers.
AMSA, the work health and safety inspectorate for the Seacare scheme, will also benefit from being
able to draw on the resources, expertise and experience of other work health and safety regulators
who apply same laws. This will assist AMSA to communicate with Seacare employers and employees
on work health and safety matters and build knowledge and expertise in compliance and
enforcement of work health and safety laws based on the model WHS laws.
Specific Impacts of the WHS Regulations and Codes of Practice
The application of the WHS Regulations and Codes of Practice will facilitate the WHS Act improving
safety outcomes, which is expected to benefit employers, employees and the community.
Since only the WHS Regulations that are similar to those that apply currently will be applied from
1 July 2017, they are not expected to impose any regulatory burden on employers in addition to the
regulatory burden imposed by the existing regulations that apply to the Seacare scheme. Further
discussions on the application of the remaining WHS Regulations will be held with Seacare scheme
employers and employees over the next two years, with a view to phasing in the application of the
WHS Regulations after two years with appropriate modifications for the Seacare scheme.
The most significant impact on employers and employees from the implementation of the WHS
Regulations would be from the introduction of a licensing scheme to regulate the performance of
specified classes of high risk work. This would require employees who perform certain classes of high
risk work to obtain a high risk work licence perform that work.
It is expected that current employees who perform the specified classes of high risk work would
already have completed the training necessary to perform the work and obtain a licence, but are not
likely to have the licence since there is no current requirement under the OHS(MI) Act and
OHS(MI)(NS) Regulations for them to hold a licence. Current employees, and new employees from
the time of introduction, who perform this high risk work would be required to obtain licenses from
state and territory work health and safety regulators.
The regulatory costs to employees from obtaining high risk work licenses to perform certain classes
of high risk work are outlined further in the Regulatory Costs chapter. Employers would be required
to ensure that any employee performing a class of high risk work holds the required licence,
although this is not expected to impose any regulatory burden on employers. The introduction of
high risk work licensing may also support improved safety outcomes.
Codes of Practice do not impose on employers an additional regulatory burden to the WHS Act and
Regulations. They provide guidance on how the requirements of the WHS Act and Regulations can
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be met. Employers can apply different approaches than outlined in a Code of Practice to meet the
WHS Act and Regulations requirements if they achieve at least an equivalent standard of safety.
Benefits from Improvements in Safety Outcomes
Improving safety outcomes in the Seacare scheme would have significant benefits for Seacare
scheme employers and employees. Workers' compensation premiums for employers (and their
insurers) would be expected to decrease. There would be less time lost due to injury and employers
would avoid costs associated with replacing employees either temporarily or permanently
employees. Workers would benefit through greater income from working than what they would
receive through workers' compensation while injured, elimination of costs from workplace injuries
that are not covered by workers' compensation and significantly improved quality of life from not
suffering a serious injury. The community would benefit from reduced costs of funding medical
expenses of injured seafarers.
The RIS for the introduction of model WHS laws across Australia suggested that the minimum
expected reduction in workplace injuries resulting from alignment with model WHS laws would be at
least 1.4 per cent.2
Given the current work health and safety performance of the Seacare scheme and reduction in
safety incidents following the implementation of the model WHS laws, it is reasonable to expect that
expanding the WHS Act to include Seacare will have some positive impact on work health and safety
performance for the Seacare scheme. The estimate of 1.4 per cent is used in this analysis as the
lower-bound of reduced work safety incidents from Seacare scheme alignment.
One stakeholder suggested that the reduction in workplace injuries could be in the order of
5 per cent to 10 per cent. This estimate is reasonable given other estimates of the impact of
implementing aspects of the model WHS laws and outcomes observed in those jurisdictions that
have implemented the model WHS laws. The reported reduction in safety incidents achieved in
those jurisdictions that have implemented the model WHS laws is also modelled by the experience
in NSW, which made certain changes to its work health and safety legislation in 2001 that were later
adopted in the model WHS laws. This was reported in 2006 to deliver a 9 per cent reduction in safety
incidents.3
The estimate of 5 per cent, based on the lower estimate provided by the stakeholder, is used in this
analysis as the upper bound of reduced work safety incidents from Seacare scheme alignment.
The costs of work-related injuries are borne by employers, workers and the community. In 1995, the
Industry Commission4 (now the Productivity Commission) estimated that only 25 per cent of the
total cost of work-related injury and disease was due to the direct costs of work-related incidents
(for example, workers' compensation premiums paid by employers or payments to injured workers
from compensation schemes). The remaining 75 per cent related to indirect injury costs such as loss
of productivity, loss of income and quality of life. This 1:3 direct to indirect cost ratio was considered
a conservative estimate as not all indirect costs could be quantified. Subsequent reports by the
National Occupational Health and Safety Commission and SWA have refined the method for
2
Decision Regulation Impact Statement for a Model Occupational Health and Safety Act, Access Economics,
December 2009.
3
ACIL Tasman (2004) Occupational Health and Safety: Economic Analysis, Report for WorkCover
4
Industry Commission (2005), Work Health and Safety, An Inquiry into Occupational Health and Safety Pg 22
Seafarers and Other Legislation Amendment xxxviii House of Representatives
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Regulation Impact Statement
calculating indirect costs but have not specified a new ratio. To address the underestimation of
indirect costs, a slightly higher ratio of 1:4 is often applied, although this does vary by sector and
severity of injury from as low as 1:2 to as high as 1:50.5
The more conservative 1:4 ratio is used to estimate the indirect safety benefits from aligning the
Seacare scheme, since there is not sufficient data to directly calculate these indirect costs and so as
not to overestimate the potential safety benefits. When adjusting for this ratio, the overall benefits
from improved safety outcomes associated with the proposed changes are estimated to be between
$1.050 million-$3.750 million per year across the Seacare scheme.
In 2012, SWA estimated that the cost of workplace injuries borne by employers was 16 per cent of
the total cost of workplace injuries, the cost borne by the community is 10 per cent, and the cost
borne by workers is 74 per cent (using an ex-ante approach to estimating costs).6 If benefits of the
proposed changes are shared in the same manner, the changes are estimated to provide benefits of
$0.168-$0.600 million per year for employers ($5,000-$18,000 per employer per year),
$0.777-$2.775 million per year for workers and $0.105-$0.375 million per year for the community.
The estimated benefits to Seacare scheme employers from improvements in safety outcomes are
expected to significantly outweigh the estimated compliance costs of implementing the WHS Act,
since the benefits are ongoing while the expected compliance costs are estimated to be minor and
are mostly upfront costs. However, in isolation of any changes to broader economic factors affecting
the Australian maritime industry or other costs, these benefits are not expected to have any
significant impact on the size of the Australian maritime industry, the nature of the industry or
employment opportunities in the industry.
Worker's Compensation
No significant changes to the Seafarers Act workers' compensation arrangements are proposed
under this option. On that basis, this option is not expected to have any significant costs or benefits
for Seacare employers and employees. Seacare employers will continue to be required to obtain
workers' compensation insurance and the changes proposed are not expected to have any
significant impact on the cost of this insurance. However, some of the changes will have minor
impacts on the eligibility of employees for compensation, amounts of compensation paid to
employees and the age up to which they can receive compensation.
The proposal to reduce the threshold for compensation for hearing loss potentially provides a
benefit to employees by enabling some to receive compensation for hearing loss that are not eligible
under the current Seafarers Act. However, there are very few claims for hearing loss in the Seacare
scheme. It is included in the Seacare Authority 2014-15 Annual Report in the 'other' claims group,
which made up only 8 per cent of the 173 claims made during the year. On that basis, this change
would not be expected to have a significant aggregate impact for employers or employees.
The proposal to increase the limit for reasonable funeral expenses also potentially provides a benefit
to the families of deceased employees. However, there have only been two reported deaths in the
Seacare scheme in the previous five years. On that basis, this change would also not be expected to
have a significant aggregate impact for employers or employees (or the families of workers).
5
Prepared by Allen Consulting Group for WorkSafe Victoria (2007). Regulatory Impact Statement: proposed
Occupational Health and Safety Regulations 2007 and proposed Equipment (Public Safety) Regulations 2007.
6
Safe Work Australia (2012), The Cost of Work-Related Injury and Illness for Australian Employers, Workers
and the Community
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The proposal to increase the Seafarers Act threshold for level of contribution to injury for diseases to
be compensable from a 'material degree' to a 'significant degree' potentially has a cost for some
employees who would be eligible to receive compensation under the current Seafarers Act by
making them ineligible to receive compensation. However, the number of claims for compensation
in the Seacare scheme for disease-related injuries is small. This change may impact as little as one or
two claims, so it would not be expected to have a significant aggregate impact on employers or
employees.
The proposal to align the retirement age in the Seafarers Act with the age of eligibility for the age
pension in the Social Security Act would benefit employees by enabling them to receive workers'
compensation under the Seafarers Act for a longer period of time. This would meet a possible gap
when no entitlements are paid between an employee's workers' compensation entitlements ceasing
and their eligibility for the age pension commencing.
This overall benefit of these changes for injured employees is estimated to be around $0.1 million
per year. This represents a transfer from employers (and their insurers) to employees.
Given the minor and technical nature of the proposed workers' compensation changes and limited
expected impacts, these changes are not expected to have any broader impacts on Seacare scheme
employers of the Australian maritime industry.
Attendant Care for Catastrophic injuries
The financial impact of the NIIS has been assessed by Treasury as part of its RIS for the introduction
of the NIIS.
This amendment would provide a significant potential benefit for employees in the Seacare scheme
who suffer a catastrophic injury at work. They would be entitled to lifetime, uncapped attendant
care and household services through the NIIS and NDIS. These services are subject to caps of
$251.94 each per week under the current Seafarers Act.
The aggregate benefit for employees is expected to be limited. Compensation for attendant care and
household services is currently estimated to be only 0.1 per cent of compensation paid under the
Seacare scheme, which equates to around $0.015 million per year. It is not clear how much this
would be expected to increase (which would represent benefits to employees) following the
introduction of the NIIS, since this would depend on whether the care provided to current recipients
is adequate to meet their needs.
Cost Recovery Levy and Fees
The introduction of a cost recovery levy would represent a cost for employers. This cost would be a
new cost, since Seacare scheme employers do not currently contribute to the cost of the Seacare
scheme's administration and regulation (they pay a levy to maintain the Safety Net Fund).
The impact of the cost recovery levy would depend on if and when the Government chooses to
charge the levy and what rate the levy is set at. If set too high, there is some risk that the increase in
costs for Seacare employers could reduce their competitiveness, potentially decreasing the number
of employers and vessels in the Seacare scheme and reducing employment opportunities in the
Australian maritime industry.
The Government will consult with Seacare scheme employers to fully understand the impact of any
proposed levy prior to implementing it. If the Government chooses to impose a levy, the
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Government could assist Seacare employers to manage the cost impact by phasing the levy in over a
number of years. The levy would not fully cost recover the costs of administering and regulating the
Seacare scheme while it is being phased in.
It is proposed that the Seafarers Insurance Levy and cost recovery levy, when charged, would be
calculated and collected in the same way as the existing Safety Net Fund levy (calculated per
seafarer berth on the first day of a quarter). This would ensure there is no additional regulatory
burden on employers from changes to the Levy Act and Levy Collection Act to introduce a
mechanism for charging a cost recovery levy (once the Government decides to charge it).
The impact of cost recovery fees on employers is expected to be around $0.060 million per year (in
total across the Seacare scheme).
Governance
The transfer of the Seacare Authority's functions to the SRCC and Comcare is estimated to result in
savings of approximately $10,000 for the Government as a result of no longer paying the
Chairperson's daily sitting rate or travel costs of Seacare Authority members. The Advisory Group
will not have any costs since members will not be remunerated.
This change is not expected to have any impact on Seacare employers or employees.
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Regulatory Costs
In accordance with Australian Government policy, the cost burden of new national regulation,
whether arising from new regulations or changes to existing regulation, must be quantified using its
Regulatory Burden Measurement framework.
Option 2 - Abolishing the Seacare scheme
The repeal of the Seafarers Act, Levy Act and Levy Collection Act would result in regulatory savings
for employers from not having to purchase a workers' compensation insurance policy. Averaged
over ten years, it is estimated that this benefit for employers would be around $26.8 million per
year ($812,000 per employer for the 33 current Seacare scheme employers).
The repeal of the OHS(MI) Act would also result in regulatory savings for employers. However, no
estimate of this saving is provided for this RIS. Calculating this saving would require estimating the
total regulatory cost for Seacare employers of protecting the health and safety of their employees,
including the activities outlined above. It is also complicated by the fact that in the absence of the
OHS(MI) Act and without any other work health and safety coverage, Seacare employers would still
owe a common law duty of care to their employees. To satisfy this duty, employers would likely
continue to undertake a number of measures to protect the health and safety of their employees.
Seacare employers may also be required under other instruments, such as enterprise agreements, to
consult with their employees on work-related matters, such as health and safety.
Table 15 - Regulatory Burden and Cost Offset Estimate Table - Option 2
Average annual regulatory costs (from business as usual)
Change in Business Communi Individual Total
costs ($ million) ty organisations s change in costs
Total, by -$26.8 N/A N/A -$26.8
sector
As per Australian Government policy, the regulatory costs of complying with state or territory
government regulation are not considered in the estimates and discussion above. The estimates
above reflect the regulatory cost of complying with Seacare workers' compensation and work health
and safety legislation.
The actual regulatory saving of this option is likely to be significantly less than outlined above, and
there may not be any actual regulatory saving, since Seacare scheme employers would have to
comply with state or territory government workers' compensation and work health and safety
legislation. State and territory legislation workers' compensation and work health and safety
legislation imposes similar regulatory requirements to the Seacare scheme. Depending on
arrangements developed for winding down the Seacare scheme, it is also possible that former
Seacare scheme employers may have to simultaneously manage long-tail claims made under the
Seacare scheme prior to the repeal of the Seafarers Act, which would also result in ongoing
regulatory costs for former Seacare employers.
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Employers would likely incur one-off regulatory costs from transitioning to a state or territory
workers' compensation and work health and safety scheme, such as building an understanding of
new legislative requirements and processes and obtaining a workers' compensation insurance
provider. These are estimated to be approximately $50,000 in total across the Seacare scheme.
Option 3 - Reform of the Seacare scheme
Benefits
There would be minor benefits for employers from clarifying the coverage of the Seacare scheme,
since it would be simpler for them to determine coverage of a vessel, which will reduce the time it
takes to determine whether an injured employee was covered by the Seacare scheme at the time of
their injury. Averaged over a ten year period, it is estimated that clarifying the coverage of the
Seacare scheme would result in regulatory savings for Seacare scheme employers of approximately
$0.005 million per year across the Seacare scheme.
Costs
The Department engaged PwC to collect and analyse data on the benefits and costs of aligning the
OHS(MI) Act with the WHS laws through interviews with businesses and industry representatives. An
analysis of the key differences between the OHS(MI) Act and the WHS Act was undertaken. The
differences were then further split into those that were deemed by PwC to have a significant impact
on costs and those that would likely have no significant impact. Consideration of the significance of
differences was informed by the findings of the Stewart-Crompton Review and consultations with
stakeholders.
Stakeholders indicated there would be one-off and ongoing costs incurred as a result of the
proposed changes.
The one-off costs were:
training for staff to help them understand the changes, and
licence costs for certain classes of high-risk work (existing staff).
The ongoing costs were:
licence costs for certain classes of high risk work (for new staff).
Officers
Stakeholders expected to incur one-off costs associated with training of 'officers' in relation to their
due diligence responsibilities under the WHS Act. It is estimated that this would consist of around
one day of training, for an average of 10 officers per organisation. Costs would include course costs,
staff time and food, as well as travel and accommodation for half of the participants.
The one-off cost to employers of additional training for officers is estimated to be around $528,000
across the Seacare scheme ($16,000 per employer).
All other seafarers (workers)
Stakeholders expected to incur one-off costs associated with bringing all seafarers up to speed with
their new responsibilities under the WHS Act. It is estimated this would consist of updating online
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training modules, and providing verbal communication and written material. On average, it was
estimated to take around half an hour per worker.
The one-off cost to employers of training existing seafarers on the new WHS laws is estimated to be
around $334,000 across the Seacare scheme ($10,000 per employer).
High risk work licensing
The WHS Regulations require certain work, or classes of work, to be carried out only by or on behalf
of a person who is licensed. Since the OHS(MI)(NS) Regulations do not currently require any class of
work to be carried out by a person who is licensed, it is not proposed that high risk work licensing be
introduced immediately for the Seacare scheme. Instead, further discussions on the application of
these regulations would be held with Seacare scheme employers and employees with a view to
phasing in high risk work licensing after two years.
Stakeholders were of the view that individuals required to perform high risk work would already
have completed the relevant training. As many seafarers work across jurisdictions with different
safety requirements, employers in many cases have required seafarers to be trained to satisfy the
highest possible standards that could be encountered.
While seafarers may have already undertaken the relevant training to perform high risk work, some
seafarers may not possess the licence associated with the training. One business indicated that
approximately 50 per cent of its seafarers would undertake high risk work in the applicable classes
and potentially require a licence.
Assuming that current employees performing high risk work do not require further training to obtain
a licence, the one-off cost to current employees of obtaining licences is estimated to be
$79,000 across the Seacare scheme when high risk work licensing is introduced. The ongoing cost of
obtaining licences from that time for new employees is estimated to be $8,000 per year.
In total, averaged over a ten year period, it is estimated that regulatory costs arising from abolishing
the OHS(MI) Act and extending the coverage of the WHS Act to the Seacare scheme would be
approximately $0.100 million per year. These include costs of $0.086 million per year for employers
(around $0.003 million per employer) from providing training on the WHS Act and $0.014 million per
year for employees from obtaining high risk work licences required under the regulations.
Net Regulatory Costs
Reform of the Seacare scheme has an estimated regulatory cost of $0.095 million per year, averaged
over ten years. This includes regulatory costs of $0.081 million per year for employers
($0.003 million per employer) and $0.014 million per year for employees. There are no regulatory
costs for community organisations.
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Table 16: Regulatory Burden and Cost Offset Estimate Table
Average annual regulatory costs (from business as usual)
Change in Business Individual Communi Total
costs ($ million) s ty Organisations change in costs
Total, by $0.081 $0.014 N/A $0.095
sector
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Conclusion and Recommendations
Option 1 - Status Quo
There are significant problems with the current Seacare scheme that make retaining the status quo
not a feasible option.
The lack of clarity over the coverage of the Seacare scheme presents significant issues for Seacare
employers and employees and other maritime industry participants that are only likely to get worse
over time as the maritime industry continues to evolve.
It is assumed that the Seacare Authority exemptions and declarations made by the Minister in
response to the Federal Court's Aucote decision, which significantly expanded the coverage of the
Seacare scheme, would be renewed to continue to limit the coverage of the Seacare scheme.
However, if this were not the case and the Federal Court's expansive interpretation of the coverage
applied, this would have a massive cost impact for maritime industry employers previously covered
by state workers' compensation Seacare scheme, who would have to obtain insurance under the
more expensive Seacare scheme, and the Government, which would be required to regulate the
significantly larger Seacare scheme.
The work health and safety performance of the Seacare scheme is below that of other jurisdictions
and other high risk industries. The Seacare work health and safety laws, provided in the OHS(MI) Act,
are outdated and not aligned with contemporary work health and safety law and practice. With no
change to the OHS(MI) Act, it is not expected that there would be any significant improvements in
work health and safety performance in the Seacare scheme the near future, although current trends
of improving performance may continue.
Changes to the age of eligibility for the age pension are scheduled to come into effect from
1 July 2017. The NIIS is also expected to be implemented in the near future. With no changes to the
Seafarers Act, there will be a gap between when injured employees cease being eligible for
compensation under the Seafarers Act and when they become eligible to receive the age pension.
The Seacare scheme would also likely be inconsistent with the minimum benchmarks of the NIIS,
once agreed.
The Seacare Authority, Comcare and AMSA are not adequately funded to effectively administer and
regulate the Seacare scheme. With no change to existing arrangements, this issue will continue.
Given the urgent need to provide certainty to stakeholders over the coverage of the Seacare scheme
following the Federal Court's Aucote decision and ensure alignment with the age of eligibility for the
age pension and minimum benchmarks of the NIIS, as well as the clear need to update the Seacare
scheme's work health and safety laws, retaining the status quo is not preferred. All stakeholders
agree that reform of the Seacare scheme is necessary and overdue.
Option 2 - Abolish the Seacare Scheme
The small size of the Seacare scheme also suggests that maintenance of a separate workers'
compensation and work health and safety Seacare scheme may be unwarranted.
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In 2004 the Productivity Commission noted that it sees little justification for maintaining
industry-specific workers' compensation schemes where workers in one industry are subject to
substantially different arrangements compared with other workers in the same state. 7
Since workers' compensation insurance under the Seacare scheme is expensive compared to state
and territory workers' compensation schemes, industry representatives support abolishing the
Seacare scheme.
It is estimated that Seacare employers would obtain a regulatory saving of $26.8 million per year as
a result of not having to obtain a policy of insurance under the Seacare scheme. However, this does
not reflect the full regulatory costs of this option. Employers would incur costs from obtaining
workers' compensation insurance under state and territory workers' compensation schemes.
Workers' compensation costs are generally cheaper in state and territory schemes compared to the
Seacare scheme. However, employers would also incur transition costs and it may also be necessary
for employers to continue to manage long-tail liabilities from the Seacare scheme, resulting in
additional costs. These costs may erode much of the regulatory saving outlined above.
While it is difficult to compare compensation entitlements across jurisdictions, the Seacare scheme
is relatively generous compared to state and territory schemes. Some employees may experience a
reduction in workers' compensation benefits under state and territory workers' compensation
schemes, compared to what they would have received under the Seacare scheme. Because of the
potential costs for employees, union stakeholders are strongly opposed to abolishing the Seacare
scheme.
Improvements in work health and safety outcomes and reductions in workers' compensation costs
for employers could be achieved by abolishing the legislation that establishes the Seacare scheme
and moving Seacare employers and employees into state or territory workers' compensation and
work health and safety schemes. Employers and employees would benefit from improved safety
outcomes by transitioning from the OHS(MI) Act to state and territory work health and safety
legislation based on the model WHS laws. Since the Commonwealth WHS Act is also based on the
model WHS laws, this benefit is equivalent to the benefit that would be expected from improved
safety outcomes in option 3.
While this option could potentially have some cost saving for the Government, implementing it
would require extensive consultation and negotiation with Seacare employers and employees,
insurers and state and territory governments. Arrangements for managing long tail Seacare claims,
including claims against the Safety Net Fund (where there is no longer an employer to claim against),
would need to be considered. Stakeholders would face continued uncertainty over the coverage of
the Seacare scheme while arrangements to abolish the Seacare scheme are developed. Urgent
issues such as the potential gap in eligibility for the age pension and the implementation of the NIIS
would also go unaddressed.
This option is also not preferred. Actual regulatory benefits, once costs of transitioning to state and
territory workers' compensation schemes are considered, are uncertain. Due to the long-tail nature
of the Seacare scheme, it would need to remain in operation for a number of years. While benefits
from improved safety outcomes would be expected, these would be equivalent to those expected
7
National Workers' Compensation and Occupation Health and Safety Frameworks, Productivity Commission,
24 June 2004, p.327
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from option 3. This option would take time to implement and issues requiring urgent action would
not be addressed in the meantime. Certain stakeholders are also strongly opposed to this option.
Option 3 - Reform of the Seacare Scheme
This option would provide much needed certainty to maritime industry employers and employees
over the coverage of the Seacare scheme. It would provide clear coverage rules that operate
consistently to minimise jurisdictional uncertainty and enable maritime industry employers and
employees to easily determine if they are covered by the Seacare scheme.
The OHS(MI) Act is significantly out of date and has a number of deficiencies compared to the WHS
Act. The OHS(MI) Act has more specific application and its objects are more operationally directed
than aimed at continuously improving safety. Its definitions and duties of care have narrower scope.
Penalties for breaching work health and safety legislation are much lower in the OHS(MI) Act.
Retaining industry-specific work health and safety legislation for the Seacare scheme is unnecessary.
Expanding the scope of the Commonwealth WHS Act to include the Seacare scheme would align the
Seacare scheme's work health and safety arrangements with the model WHS laws that have been
adopted in all states and territories (except Victoria, which has legislation similar to the model WHS
laws, and Western Australia, which is moving to adopt substantial amounts of the model WHS laws).
The duties and requirements of the WHS Act are broad based and capable of applying to a range of
industries. The Seacare scheme is not significantly different from other industries which fall under
Commonwealth, state or territory work health and safety legislation based on the model WHS laws.
Expanding the scope of the WHS Act to include the Seacare scheme is expected to have some minor
regulatory costs for employers and employees, which are mostly upfront costs related to training on
the WHS Act and obtaining high risk work licences. However, it is expected to provide significant
ongoing benefits to employers, employees and the broader community by improving safety
outcomes. Unions and Seacare employers support adopting the WHS Act for the Seacare scheme.
This option would make generally minor amendments to the Seafarers Act to ensure consistency
with the SRC Act, upon which it was originally based. However, one of the amendments would align
the age at which injured employees cease to be eligible for workers' compensation with the age of
eligibility for the age pension in the Social Security Act. This would ensure there is no gap between
eligibility for workers' compensation and the age pension when changes to the age of eligibility for
the age pension commence. Another amendment would ensure allow for the introduction of the
NIIS by enabling caps on attendant care and household services to be removed for employees with a
catastrophic injury. These amendments are urgently required to align the Seacare scheme with
recent policy decisions of the Government affecting the Seacare scheme.
This option would provide for more efficient and effective governance of the Seacare scheme by
transferring the Seacare Authority's functions to the SRCC, Comcare and AMSA. The ability of the
Chairperson of the SRCC to establish an Advisory Group will ensure that industry continues to have
input on the operation of the Seacare scheme. This option would also introduce a mechanism to
charge a cost recovery levy on Seacare employers that would enable the Government to recover the
SRCC, Comcare and AMSA's costs of administering and regulating the Seacare scheme. Cost recovery
would ensure that the SRCC, Comcare and AMSA have sufficient financial resources to perform their
administrative and regulatory functions for the Seacare scheme.
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Reform of the Seacare scheme the recommended option. It addresses the most urgent problems
with the current Seacare scheme with only a minimal regulatory cost on Seacare scheme employers
and employees, who are expected to benefit significantly over time from improved work health and
safety outcomes.
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Consultation
Seacare reform has been the subject of extensive consultation with stakeholders over a number of
years.
Reviews and Reform Discussions
EY and Stewart-Crompton Reviews
The EY Review and Stewart-Crompton Review included consultation with stakeholders.
The Stewart-Crompton Review was conducted over six months from October 2012 to March 2013. In
November and December 2012, thirteen meetings were held across Australia with a number of
stakeholders, including industry representatives and employers, maritime unions, government
agencies and insurers. A discussion paper was also released publicly for comment, with
13 submissions from this stakeholder group. Following the release of the review report, the
Department held further consultations with these stakeholders to discuss the recommendations.
The EY Review was conducted over a short period of time in April and May 2005, with reviewers
having three weeks to consider submissions, conduct stakeholder consultations, formulate
recommendations and complete the report. Meetings were held with relevant Commonwealth
government agencies, state workers' compensation authorities, industry representatives, maritime
unions, law firms and insurers. A total of 16 organisations were consulted. One hundred and seventy
seven written submissions were received. Over 160 of these were common letters signed by
individual seafarers.
Consultation on Seacare Reforms
More recently, the Department held five one-day workshop consultations with stakeholders
between May and August 2015 to discuss possible reforms to the Seacare scheme. Workshop were
held on coverage, governance, work health and safety and workers' compensation arrangements,
with two workshops held to discuss coverage given the complexity of the matter. These
consultations included industry representatives and employers, maritime unions and relevant
Commonwealth government agencies (many of the attendees were Seacare Authority members or
deputies). For each workshop consultation, the Department of Employment distributed a paper
outlining issues raised in the Stewart-Crompton review and possible approaches to improve the
Seacare scheme. Stakeholders were invited to comment on the proposed approaches and offer
alternative proposals.
On 21 December 2015, the Department released a consultation RIS outlining proposed reforms to
the Seacare scheme for public comment. The Department wrote to Seacare Authority members and
key stakeholders who had been involved in the workshop consultations to inform them of its release
and to ask that they make their members aware of its release. The Department also published
advertisements in national and specialist media and social media alerts through January to alter the
public to the release of the consultation RIS. The submission period ran for six weeks until 5
February 2016, although late submissions were accepted and considered.
Fifteen submissions in total were received from industry representatives and employers engaged in
the Great Barrier Reef Tourism industry, insurance providers and maritime unions. During the
submission period, the Department also held a meeting with industry representatives and insurers
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to further discuss the proposed reforms. The Department attempted to arrange a similar meeting
with maritime unions but received no response.
Legislation Previews
In March and April 2016, the Department held two closed previews of draft Seacare reform
legislation with representatives of organisations represented on the Seacare Authority (and their
deputies), including industry representatives, employers and maritime unions. The purpose of the
previews was for stakeholders to review the technical detail of the legislation to ensure there were
no unintended consequences and comment on the policy positions proposed.
At the first meeting, stakeholders were asked to review and provide feedback on the draft legislation
over one day. Following stakeholder concerns that there was not sufficient time to adequately
review the draft legislation, a second meeting was organised that was held over two days, with
stakeholders reviewing the draft legislation on the first day and providing feedback on the second.
Stakeholder Views on Options
Information on stakeholder views on each of the reform proposals and how proposals were
developed in response to stakeholder feedback is provided below.
Option 1 - Status Quo
Stakeholder views on the need for reform of the Seacare scheme have developed since the EY
Review. During the EY Review, industry representatives (generally) and unions supported the
Seacare scheme, although both identified areas for improvement of the Seacare scheme such as
clarifying the coverage of the Seacare scheme, providing greater access to redemptions and
increasing funding for Seacare scheme administrators and regulators.
During the Stewart-Crompton Review, stakeholders identified the same issues raised in the EY
Review and more areas for improvement of the Seacare scheme. While many stakeholders were
supportive of the Seacare scheme, all suggested improvements. The Stewart-Crompton Review's
68 recommendations for improvements to the Seacare scheme demonstrated a consensus among
stakeholders for the need for reform of the Seacare scheme, although there was not agreement
among stakeholders on the nature of the required reforms.
Following the Federal Court's Aucote decision, industry representatives highlighted an urgent need
for reform of the Seacare scheme to clarify the coverage of the Seacare scheme. During the recent
consultations held by the Department, all stakeholders agreed on the need for reforms of the
Seacare scheme to clarify its coverage, modernise its work health and safety legislation and improve
the governance of the Seacare scheme. No stakeholder argued that the Seacare scheme should be
retained in its current form without modification.
Based on all consultation that has taken place, there is clear consensus from industry
representatives and maritime unions that maintaining the status quo is not a feasible option and
reform of the Seacare scheme is necessary.
Option 2 - Abolish the Seacare scheme
During the EY Review, a small number of industry representatives and insurers supported abolishing
the Seacare scheme. The EY Review proposed abolishing the Seacare scheme as one of two options
to modernise workers' compensation and work health and safety regulation for Seacare scheme
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employers and employees, with the other option being reform of the Seacare scheme. No
stakeholder proposed abolishing the Seacare scheme during the Stewart-Crompton Review,
although this option was outside the review's terms of reference.
During recent consultations held by the Department, industry representatives raised concerns about
the high cost of workers' compensation insurance under the Seacare scheme compared to state and
territory workers' compensation schemes. They consider that there is no need for a separate
workers' compensation and work health and safety scheme for this defined part of the maritime
industry. The Seacare scheme is unusual being an industry-specific workers' compensation scheme.
Industry representatives support abolishing the Seacare scheme and transferring Seacare employers
and employees to state and territory workers' compensation and work health and safety schemes.
An insurer stakeholder also expressed support for this option. Industry representatives
acknowledged some complexity with abolishing the Seacare scheme, but did not regard this
complexity as insurmountable. Seacare scheme employers would likely achieve some cost savings
from this option.
Maritime unions, however, expressed strong opposition to this option. They consider it would result
in a reduction in workers' compensation entitlements for employees. While it is difficult to compare
benefits between workers' compensation schemes, some employees may experience a reduction in
workers' compensation entitlements if transferred to state and territory workers' compensation
schemes. Rather than abolishing the Seacare scheme, unions consider that the Seacare scheme
should be expanded to cover a greater proportion of the Australian maritime industry.
Option 2 in this RIS would give effect abolishing the Seacare scheme. Based on all consultation that
has taken place, there is support for this option, although it is limited to industry representatives.
This option is strongly opposed by unions.
Option 3 - Reform of the Seacare Scheme
Coverage
The lack of clarity over coverage of the Seacare scheme has been raised as a key issue by
stakeholders in both the EY Review and Stewart-Crompton Review of the Seacare scheme and in
recent consultations undertaken by the Department.
During the EY Review and Stewart-Crompton Review, stakeholders raised a number of concerns over
the clarity of coverage of the Seacare scheme and suggested a number of different approaches to
resolve these issues. Maritime unions submitted proposals that would expand the coverage of the
Seacare scheme to a greater proportion of the Australian maritime industry.
Based on stakeholder views, the EY Review suggested removing the Seafarers Act and OHS(MI) Act
links with the Navigation Act for determining coverage. An alternative approach to defining coverage
based on the tonnage of a vessel was also suggested. The Stewart-Crompton Review also
recommended removing links to the Navigation Act. It further recommended not reducing the
coverage of the Seacare scheme, allowing employers to opt in to the Seacare scheme and allowing
vessels to seek an exemption from coverage by the OHS(MI) Act as well as the Seafarers Act.
For workshop consultations on coverage, the Department provided stakeholders with a number of
options for clarifying the coverage of the Seacare scheme. One option involved reform of the
existing coverage, where links to the Navigation Act were removed, the voyage-based test was
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modified to provide greater consistency of coverage and a mechanism for employers to opt in to
coverage was included. Other options, including a seafarer berth or tonnage-based definition, were
proposed.
During discussions, industry representatives would not support a new test of coverage that would
result in more vessels being covered by the Seacare scheme. On the other hand, maritime unions
continued to support an expanded coverage of the Seacare scheme and would not support a new
test that would result in fewer vessels being covered.
Both industry representatives and maritime unions expressed support for developing a substantially
new model of coverage of the Seacare scheme. However, the Department was not able to develop a
model that totally satisfied both industry representatives and maritime unions, with both expressing
concerns about the potential impact of new models of coverage on the number of vessels covered
by the Seacare scheme.
The proposed new coverage test represents reform of the existing coverage test, as outlined above.
Consistent with the views of industry representatives and maritime unions, it clarifies the coverage
of the Seacare scheme while maintaining the scope of coverage that applied prior to the Federal
Court's Aucote decision (and applies now as a result of actions taken to limit the coverage of the
Seacare scheme following that decision). Following the consultation RIS, the proposed coverage test
was refined in response to submissions from employers operating in the marine park tourism
industry to ensure that they would not be inadvertently covered.
Work Health and Safety
The EY Review did not consider the OHS(MI) Act in detail. However, since the Stewart-Crompton
Review followed the implementation of the model WHS laws, a number of stakeholders commented
on Seacare work health and safety arrangements. Industry representatives expressed differing views
on the model WHS laws, with one open to adopting the laws for the Seacare scheme but seeking
further analysis, while another opposed their adoption for the Seacare scheme. Maritime unions
expressed support for adopting the model WHS laws for the Seacare scheme. However, both
industry representatives and maritime unions expressed support for retaining separate work health
and safety legislation for the Seacare scheme.
The Stewart-Crompton Review recommended largely adopting the model WHS laws for the Seacare
scheme, but through separate legislation. It also recommended a transition period for Seacare
participants to make preparations to adopt the model WHS laws.
The Department considers there is no compelling reason to retain separate work health and safety
legislation for the maritime industry. The WHS Act, which adopts the model WHS laws, has broad
based duties that are capable of applying to the maritime industry.
During consultations held by the Department, industry representatives and maritime union
expressed general support for expanding the coverage of the WHS Act to include the Seacare
scheme. Some concerns were raised about the application of specific provisions, including union
right of entry and HSR training, but the Department did not consider it necessary to modify the
application of these provisions for the Seacare scheme as this sector of the maritime industry is not
so different to warrant special provisions. Given that the WHS Regulations include a number of
matters that are not included in the OHS(MI)(NS) Regulations, they will not be applied immediately
and further consultations will be undertaken on their application.
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Workers' Compensation
During the EY Review, it was noted that the Seacare workers' compensation scheme had not kept
pace with reforms to improve state and territory workers' compensation schemes. Issues were
raised with the cost of workers' compensation insurance, high excesses and limited access to
redemptions. These issues were also raised during the Stewart-Crompton Review.
During the Stewart-Crompton Review, stakeholders generally supported the need for consistency
between the Seafarers Act and the SRC Act. However, industry representatives and insurers did not
support alignment of provisions that would increase access to compensation (or benefits) for
workers, while unions did not support alignment that would limit access to compensation.
The Stewart-Crompton Review made a number of recommendations to improve consistency
between the Seafarers Act and the SRC Act. It also made recommendations to adopt a number of
recommendations from the Hanks Review of the SRC Act, which were designed to address industry
concerns about the high cost of insurance premiums by improving return to work outcomes.
During workshop consultations held by the Department, industry representatives expressed support
for broad changes to Seacare workers' compensation arrangements that could reduce workers'
compensation insurance costs for employers. Maritime unions, on the other hand, expressed strong
opposition to any change to workers' compensation arrangements that they considered would result
in a reduction in entitlements for employees.
Following the release of the consultation RIS, industry representatives supported abolishing the
Seacare scheme rather than reforming its workers' compensation arrangements. Both industry
representatives and maritime unions expressed a strong preference for the Seafarers Act to not be
significantly reformed prior to any reform of the SRC Act (upon which it was originally based), noting
that the Hanks Review recommendations have not yet been adopted for the SRC Act.
The proposed reforms of Seacare workers' compensation arrangements are consistent with the
preference of stakeholders that the Seafarers Act generally align with the SRC Act but not be
significantly reformed prior to any reform of the SRC Act. The changes therefore include necessary
updates and clarifications to the Seafarers Act to align it with past amendments to the SRC Act.
Where the Seafarers Act is to be amended to accommodate changes to the age of eligibility for the
age pension and the implementation of the NIIS, it is proposed that corresponding amendments are
made to the SRC Act at the same time.
Cost Recovery Levy and Fees
Both the EY Review and Stewart-Crompton Review raised concerns over funding for the
administration and regulation of the Seacare scheme. The EY Review recommended increasing the
funding and resources of the Seacare Authority. During the Stewart-Crompton Review, stakeholders
questions how effective the Seacare Authority could be with its limited funding. An industry
representative raised concerns over the ability of AMSA to perform its work health and safety
inspectorate functions with its limited funding. Maritime unions submitted proposals for greater
funding and resources for the Seacare Authority.
For the workshop consultation to discuss funding of the Seacare scheme, the Department provided a
proposal to introduce a cost recovery levy. There was general agreement from industry
representatives and maritime unions that the agencies responsible for administering and regulating
the Seacare scheme are not adequately funded to perform their functions. However, stakeholders
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expressed reservations about a cost recovery levy and fees, with industry representatives noting the
high costs of workers' compensation insurance under the Seacare scheme and claiming that such a
levy and fees would place an additional financial burden on employers. Since Seacare employers do
not currently make any financial contribution to the administration and regulation of the Seacare
scheme, the introduction of a cost recovery levy would inherently increase costs for Seacare
employers. While not specifically supporting or opposing the introduction of a cost recovery levy,
unions suggested that the Government could provide more funding to the Seacare scheme.
To address the concerns of industry representatives, the reform option introduces a mechanism for
cost recovery, but the cost recovery levy will initially be set at $0. Further consultations will be held
with Seacare stakeholders prior to any levy rate being set. It would be a matter for Government in
the future to determine if a levy rate should set and at what level. The levy could be phased in to
minimise the impact on Seacare employers.
Governance
The EY Review examined the governance arrangements of the Seacare scheme. It found that the
Seacare Authority's structure appeared appropriate, but recommended that it be provided with
additional powers and funding to be a more effective regulator. During the Stewart-Crompton
Review, maritime unions expressed support for the retention of the Seacare Authority. Both industry
representatives and maritime unions also expressed support for AMSA retaining its role as the work
health and safety inspectorate for the Seacare scheme. The Stewart-Crompton Review
recommended retaining the Seacare Authority, but amending the functions of the Authority and
AMSA to provide greater clarity about their responsibilities.
On 15 December 2014, the Government announced a decision to transfer the functions of the
Seacare Authority to the SRCC. The Department later considered that it would not be appropriate to
transfer functions to the SRCC that are performed by Comcare for the Comcare scheme.
For the workshop consultation on governance, the Department provided stakeholders with a
proposal to transfer the functions of the Seacare Authority to the SRCC, Comcare and AMSA, with
each having clearly defined functions. The SRCC's current membership includes union
representatives and representatives of employers in the Comcare scheme. It was proposed that the
SRCC membership would not be expanded to include maritime industry or union representatives
given the size of the Seacare scheme and existing presence of union representation.
Industry representatives supported transferring the Seacare Authority's functions to another body,
while maritime unions supported retaining the Seacare Authority. However, during workshop
consultations, in submissions following the release of the consultation RIS and during the first
legislation preview, both industry representatives and maritime unions raised concerns over the
proposal to not include maritime industry representation in the SRCC membership. They sought
direct representation for maritime industry and union representatives on the SRCC to ensure
industry input into decision-making affecting the Seacare scheme.
To address the concerns of industry representatives and maritime unions and provide industry with
input into decision-making affecting the Seacare scheme, the reform option has been amended to
include a power for the Chairperson of the SRCC be able to establish an Advisory Group comprising
members from maritime industry representatives and unions to advise the SRCC and Comcare on
Seacare related matters.
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Regulation Impact Statement
Implementation and review
Subject to the passage of legislation, the amendments to give effect to the recommended option will
generally commence from 1 July 2017, with some exceptions.
Amendments to clarify the coverage of the Seacare scheme, align the age at which an injured
employee ceases to be eligible for workers' compensation payments under the Seafarers Act with
the age of eligibility for the age pension in the Social Security Act and facilitate the implementation
of the NIIS will commence immediately.
The cost recovery levy will initially be set at $0. It will be a matter for Comcare and AMSA to consult
with Seacare employers and unions over cost recovery for the Seacare scheme and seek the
Minister's approval to charge a cost recovery levy. Consistent with the Australian Government's
Charging Framework and Cost Recovery Guidelines, the levy would not be charged until Comcare
and AMSA have prepared a Cost Recovery Implementation Statement and the new levy has been put
in place under a new regulation.
Only WHS Regulations and approved Codes of Practice that have broad application or are similar to
those that apply currently will be applied from 1 July 2017. The Department will engage in further
consultations with Seacare stakeholders over the next two years to discuss the phasing in of the
WHS Regulations and Codes of Practice, with a view to them commencing from 1 July 2019.
With Seacare work health and safety arrangements moving within the scope of the WHS Act, work
health and safety issues affecting the Seacare scheme will be considered as part of any future review
of the model WHS laws on which the WHS Act is based.
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Regulation Impact Statement
Attachment A
The Department of Employment (the Department) engaged PricewaterhouseCoopers (PwC) to
conduct a cost-benefit analysis of the proposed changes to the Seacare scheme. PwC held limited
consultations with a small number of Seacare scheme industry representatives and employers and
used data held by Comcare to estimate the benefits and regulatory costs of the proposed changes.
The costings presented in this Regulation Impact Statement (RIS) have been developed from the
cost-benefit analysis prepared by PwC. Further information on the analysis methodology is provided
below.
Work Health and Safety Analysis Methodology
The table below provides a summary of the assumptions used by PwC in calculating the work health
and safety impacts.
The following sections describe the respective approaches applied in estimating the impacts
associated with each key change expected to occur through alignment of the OHS(MI) Act and
associated Regulations with the Commonwealth WHS Act and Regulations.
Assumptions used in estimating work health and safety impacts
Assumption Unit Value Source
Based on a sample of Enterprise Bargaining
Agreements (EBAs) across offshore,
bluewater and dredging. A weighted
average was calculated using seafarers per
sub-sector and assuming that the mix
between senior and junior crew was a mix
Average hourly wage - of around 50:50.
$ per hour 84
all workers Salaries were converted into an hourly rate
using the following assumptions:
- 27 weeks worked per year
- 70 hours worked per week (10 hours
per day for 7 days a week).
Individuals' hourly rate
$ per hour 29 Standard OBPR estimate
of leisure time
Number of employers
under the Seacare Employers 33 Seacare Annual Report 2014-15
scheme
Number of employees
covered under the Employees 6,863 Seacare Annual Report 2014-15
Seacare scheme
Seacare claims amount $millions
15 PwC analysis of Seacare data
per annum annually
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Regulation Impact Statement
Assumption Unit Value Source
Regulatory Impact Statement - Technical
appendix to the RIS (Proposed
Ratio of direct to
Ratio 1:4 Occupational Health and Safety
indirect costs of claims
Regulations 2007 and Proposed Equipment
(Public Safety) Regulations 2007)
On-costs % 16.0% Assumption.
Given the nature and size of the changes,
we do not anticipate that additional costs
for overheads (e.g. HR, IT, finance etc.)
Overheads n/a n/a
would likely increase. Therefore no amount
for overheads has been included in the
estimates.
Assessment of Cost Impacts
Licensing for certain classes of high risk work
The WHS Act and Regulations require certain work, or classes of work, to be carried out only by or on
behalf of a person who is authorised.
It is estimated around 50 per cent of workers in the offshore sector would require a licence, and only
half of this (25 per cent) in other sectors.
Desktop research and business comments suggested that licence costs per affected employee could
range between $67 and $84.
The additional licensing requirements will impose costs on those currently working in the industry (one-
off costs), as well as new entrants to the industry (ongoing costs).
The approach used to estimate the cost for applying for the licences is outlined in Figures 1 and 2 below.
Figure 1: Approach to estimation of costs associated with changes to authorisation (Employee one-off
costs to apply for licence)
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Figure 2: Approach to estimation of costs associated with changes to authorisation (Employee
ongoing costs to apply for licence)
Specific assumptions and modelling inputs
Assumption Value Units Source and comments
Proportion of the 50 % of Industry consultation
workforce requiring high- workers
risk work licences
(offshore)
Proportion of the 25 % of Industry consultation
workforce requiring high- workers
risk work licences (other
sectors)
Time to apply for licence 1 hour Assumption
Training of 'officers'
The WHS Act imposes a duty on 'officers' to exercise due diligence to ensure that the PCBU complies
with their WHS duties. It is assumed this would be one day of training.
Figure 3: Approach to estimate costs of additional training of officers
Specific assumptions and modelling inputs
Assumption Value Units Source and comments
Average number of officers per Average figure of information provided
10 persons
organisation during consultation
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Regulation Impact Statement
Assumption Value Units Source and comments
Course fees 480 $ Proportion of 5 day course fee.
Time taken 7.5 hours Assumption informed by consultation
and online information.
Airfare costs per-individual for $ per return
500 Industry consultation
attending training flight
Meal costs per-individual while
60 $ per day Industry consultation
attending training
Taxi costs for trips to/from airports
40 $ per trip Industry consultation
to attend training
Cost of training other employees
It was also estimated that all other employees would also need to be updated on the changes, however
this would be undertaken as either online training, a verbal information presentation or provided as
written material. It is estimated on average that this would take around 30 minutes of time for each
employee.
Figure 4: Approach to estimate costs of additional training of other employees
Specific assumptions and modelling inputs
Assumption Value Units Source and comments
Time taken 0.5 Hours Average figure of information provided during consultation
Assessment of Benefit Impacts
Increased safety benefits
The estimated safety benefits are more difficult to quantify due to the mixed views of consultation
participants, range of circumstances that often lead to safety incidents, and range of different
businesses that operate under the Seacare scheme.
Most participants believed that there would be at least some safety benefits as a result of the
alignment, due to increased breadth of compliance tools and/or an increase in personal responsibility
due to specific duties imposed on them.
There was a view that range of enforcement mechanisms under the WHS Act would result in
behavioural change. It was expected that this behavioural change would result in further improved
safety outcomes under alignment.
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Regulation Impact Statement
The expected reduction in workplace injuries resulting from alignment with model WHS laws would be
at least 1.4 per cent.8
This estimate is used in this analysis as the lower-bound estimate of reduced workplace safety incidents
from Seacare scheme alignment. The upper bound used is 5.0 per cent, based on the lower estimate
provided by the stakeholder comments above.
Figure 5: Approach used to estimate benefit impacts
Escalation factor to
Estimated benefits
% reduction in account for indirect
Annual claims costs from decrease in
annual claims insurance claims
claims
costs
Were this impact to occur it would result in significant ongoing benefits in the form of improved safety
outcomes for Seacare scheme participants.
Workers' Compensation Analysis Methodology
Based on the cost impact assessments above we have considered the overall cost impact on the
Seafarers scheme. The results are presented in terms of the potential cost impact for the 2014-15
financial accident year.
This uses a number of assumptions regarding claims experience, as follows (note these are unchanged
from the 2015 report):
Exposure: we have assumed the number of FTEs covered by the Seacare scheme is broadly
equal to the average number covered in the previous 5 years (2010 - 2014).
Frequency of claims: we have assumed that the number of claims incurred as a percentage of
the number of FTEs covered by the scheme is slightly lower than the average of the previous five
years (2010 - 2014). This gives some allowance for the reduction in claim frequency seen in
recent years.
Average cost per claim: based on an analysis of the average cost of compensation payments
historically for both open and closed claims, we have assumed that the ultimate cost of
compensation paid to a single claimant for an accident occurring in the 2015 financial year will
be $60,000.
Based on these assumptions, our assessment of the claims cost impact for 2014-15 is an increase of $0.1
million. This is a distributional impact, rather than an overall impact to society.
8
Decision Regulation Impact Statement for a Model Occupational Health and Safety Act, Access
Economics, December 2009.
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Regulation Impact Statement
Figure 6: Assessment of the claims cost impact
Amended
Seafarers Seafarers
Description Act Act Movement % change
Exposure (FTEs) 5000
Claim Frequency 0.05
Number of claims 250 249 -1 -0.4%
Average cost per claim 60,000 60,750 750 1.3%
Total compensation ($m) 15.0 15.1 0.1 0.8%
Source: PwC analysis.
This overall impact arises from:
A small reduction in frequency which is driven by the tightening of the eligibility criteria for
which diseases are compensable. The quantum of this change is small as the nature of injuries
covered by the Seacare scheme are predominantly physical injuries sustained on duty and these
are unlikely to be removed by the proposed change.
An increase in average claim size driven by the pension age change. Note that we have
continued to assume the change in funeral benefits is not material.
This covers the change in cost of scheme claims only. It does not cover related expenditures such as
below deductible claims costs, general claims management expenses (other than those recorded against
individual claims) or other items that may be included in the employer's premiums.
Assumptions and Limitations
Coverage
The costs and benefits calculated assume that the existing coverage of the Seacare scheme will continue
into the future.
Governance arrangements
The Seacare scheme workers' compensation will remain a separate, privately underwritten Seacare
scheme.
The SRCC will replace the Seacare Authority from 2016-17 as per the Government's December 2014
announcement. There will be no significant changes to AMSA's role.
There are no changes to the Fund and levy.
Timing
The majority of the reforms are expected to commence 1 July 2017, with costs and benefits measured in
2015 prices.
Cost impacts
Costs and benefits are being assessed on the basis that the Government will near fully align the Seacare
work health and safety legislation with the Commonwealth WHS Act.
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Consultations
As the consultations were generally drawn from industries most likely to be impacted by the identified
changes, certain treatments have been applied to ensure that the cost data obtained does not overstate
the general impact.
Data
There is no obligation on an injured seafarer to lodge a Seacare Claim for Workers' Compensation form,
so not every injury results in a claim. Also, it is possible employers do not advise all employee claims to
the Seacare Authority or the employer's insurer. This is likely due to the high deductible amount that
many businesses have arranged to ensure that insurance premiums are kept at an affordable level.
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Statement of Compatibility with Human Rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Seafarers and Other Legislation Amendment Bill 2016
The Seafarers and Other Legislation Amendment Bill 2016 (the Bill) is compatible with the
human rights and freedoms recognised or declared in the international instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Seacare scheme provides workers' compensation and work health and safety (WHS)
protections to a very small defined section of the Australian maritime industry. The scheme is
established by the Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act) and the
Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act), as well as two
levy Acts. The scheme generally only applies to Australian flagged vessels and foreign flagged
vessels with an Australian crew and operator that are engaged in interstate, international or
territorial trade or commerce. As of July 2015, the scheme was known to apply to 336 vessels
and 6,863 employees (a small portion of approximately 80,000 domestic seafarers in Australia).
The Seacare scheme commenced in 1993 and has not been substantively updated since this time,
despite changes in the profile of the Australian maritime industry, including to its employment
arrangements, workplace and working conditions.
The amendments made by the Bill will update the scheme by restoring the historic link with
broader Commonwealth workers' compensation and work health and safety laws, and clarifying
coverage to reduce disputation and delay for injured workers seeking compensation.
Improvements are also made to the governance of the scheme, integrating it with existing
arrangements, and freeing up resources to improve oversight of workers' compensation
arrangements and WHS compliance.
The Bill will achieve this by:
introducing a new test to clarify coverage of the Seafarers Act;
repealing the OHS(MI) Act and extending the coverage of the Work Health and Safety
Act 2011 (WHS Act) to vessels covered by the Seafarers Act;
updating the workers' compensation provisions in the Seafarers Act to restore the
alignment with broader Commonwealth workers' compensation laws; and
giving effect to recent changes to the Maritime Labour Convention and making minor
amendments to broader Commonwealth workers compensation and work health and
safety laws.
The Seafarers Safety and Compensation Levies Bill 2016 and the Seafarers Safety and
Compensation Levies Collection Bill 2016 support this reform package by establishing new cost-
recovery arrangements to fund the regulatory oversight of the Seacare scheme.
Human rights implications
The Bill engages the following rights:
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Statement of Compatibility with Human Rights
the right to equality and non-discrimination in article 2 and 26 of the International
Covenant on Civil and Political Rights (ICCPR);
the right to social security in article 9 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR);
the rights of persons with disabilities in article 26 of the Convention on the Rights of
Person with Disabilities (CRPD);
the right to safe and health working conditions in article 7 of ICESCR;
the right to privacy in article 17 of the ICCPR; and
the right to be presumed innocent until proved guilty in article 14 of the ICCPR.
Changes to work health and safety regulation
The Bill will repeal the OHS(MI) Act and extend the coverage of the WHS Act to vessels
covered by the Seafarers Act. This promotes the right to safe and healthy working conditions by
extending a modernised system of WHS laws that align with the majority of other Australian
jurisdictions to vessels within the Seacare scheme.
Right to safe and healthy working conditions
Article 7 of ICESCR provides that everyone has the right to the 'enjoyment of just and
favourable conditions of work, which ensure, in particular ... [s]afe and healthy working
conditions'.
The OHS(MI) Act is based on the (repealed) Occupational Health and Safety Act 1991 (OHS
Act) and was broadly similar to OHS laws across all state and territories at that time. Since then
the OHS Act has been replaced by the WHS Act, which is the Commonwealth's implementation
of the model WHS laws developed by Safe Work Australia and adopted in the majority of
Australian jurisdictions.9 However, the OHS(MI) Act has not been substantially amended since
its enactment and as a consequence has become considerably out of date. The out of date
OHS(MI) Act contributes to the poor safety performance of the scheme. The Seacare Review
noted the following disparities between the OHS(MI) Act and the WHS Act:
the OHS(MI) Act's definitions and duties are more narrowly defined;
the WHS Act makes clear that duties cannot be transferred, and provides clear rules for
understanding the common situations of overlapping duties and multiple duty holders;
the WHS Act imposes a duty on officers (such as company directors) to exercise due
diligence to ensure their organisation complies with the Act;
9
The model WHS laws have been adopted by the Commonwealth and every state and territory except Victoria and
Western Australia. Western Australia is considering adopting the model WHS laws, and released a draft bill for
public comment in October 2014. While Victoria has not adopted the model WHS laws, its Occupational Health
and Safety Act 2004 has strong similarities to the model laws.
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Statement of Compatibility with Human Rights
the OHS(MI) Act has narrower arrangements for workplace consultation and
representation;
the OHS(MI) Act lacks modern graduated measures for securing compliance;
the OHS(MI) Act's penalties are significantly lower and out of date, and its sentencing
options are more limited; and
the WHS Act has more extensive regulations and codes of practice to provide more
precise regulation and guidance for high risk work and hazards.10
Removing these disparities by repealing the OHS(MI) Act and extending the application of the
WHS Act in its place will promote the right to safe and healthy workplaces.
The Seacare Review recommended that the model WHS laws should be specifically adapted for
the maritime industry. The government, after extensive consideration and consultation with key
stakeholders, has decided that industry specific WHS laws were not required, and that the right
to safe and healthy working conditions is best promoted through the adaptable, uniform laws
already in force in the majority of Australian jurisdictions. The duties and requirements in the
WHS Act and Regulations are broad based and are capable of applying to a range of sectors,
industries and businesses. Retaining industry-specific WHS legislation covering the sector of the
maritime industry covered by the scheme is no longer necessary. The sector is not so
significantly different from other industries which fall under generally applying Commonwealth,
state or territory WHS laws as to justify the continuation of separate WHS arrangements.
Maritime industry employers not currently covered by the OHS(MI) Act operate under general
WHS laws that apply to all businesses within the state or territory in which they operate. The
right to safe and healthy workplaces will be most effectively promoted in the maritime industry
by applying the same uniform WHS laws that, in most jurisdictions, apply to every other
industry.
The regulations and codes of practice which exist under the WHS Act provide detailed
regulation and guidance for particular types of high risk work and hazards. Once the OHS(MI)
Act is repealed and the WHS Act extends to the maritime industry, the regulations and codes of
practice will likewise apply to the Seacare scheme from commencement where appropriate.
Where the obligations require further consideration as to whether they are appropriate for the
industry they will be disapplied and there will be a consultation period with the expectation that
further regulations will be in place for two years from commencement. If necessary, the WHS
Regulations will be supplemented by industry specific regulation or guidance.
By aligning with contemporary WHS laws the effectiveness of WHS regulation in this sector of
the maritime industry will be enhanced.
As such, the Bill is compatible with and promotes the right to safe and healthy working
conditions.
10
A comprehensive summary of the differences between the OHS(MI) Act and the model WHS Act is contained in
Appendix G of the Stewart-Crompton Review of the Seacare Scheme.
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Right to be presumed innocent until proven guilty
The existing provisions of the WHS Act, extended to the maritime industry by the Bill, also
engage the right to be presumed innocent until proven guilty by placing an evidential onus on a
person to adduce evidence that the reason for engaging in an action was not a 'prohibited
reason'. While these provisions are already in effect and are not amended by the Bill, for
completeness an analysis of their impact on the right to be presumed innocent until proven guilty
is included below.
Article 14.2 of the ICCPR provides that '[e]veryone charged with a criminal offence shall have
the right to be presumed innocent until proved guilty according to law'. General Comment
No. 32 of the Human Rights Committee states that:
The presumption of innocence, which is fundamental to the protection of human rights, imposes on
the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the
charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt,
and requires that persons accused of a criminal act must be treated in accordance with this
principle.11
Section 104 in Part 6 of the WHS Act establishes a prohibition on engaging in 'discriminatory
conduct' for a 'prohibited reason', which is enforceable by a criminal offence with a maximum
penalty of $100,000 for individuals and $500,000 for corporations. Broadly, this part creates an
offence if a person dismisses a worker, or ceases a commercial arrangement with another person,
because of that worker or person's actions to ensure compliance with the WHS Act.
'Discriminatory conduct', defined in section 105, encompasses a person dismissing, demoting or
refusing to engage a worker or terminating or refusing to enter into a commercial arrangement
with a person. 'Prohibited reason' is defined in section 106. Generally, a person has engaged in
conduct for a prohibited reason if they engaged in conduct against a person because the person
exercised a power or right under the WHS Act or raised a WHS concern.
A person is only guilty of an offence under section 104 if the prohibited reason was the dominant
reason for the discriminatory conduct. The prosecution must prove that:
the discriminatory conduct was engaged in; and
that a circumstance in which a prohibited reason could arise existed.
However, if the prosecution can establish these matters beyond a reasonable doubt, and adduces
evidence that the discriminatory conduct was engaged in for a prohibited reason, it is presumed
that the dominant reason for the discriminatory conduct was the prohibited reason.
The accused can rebut this presumption by establishing, on the balance of probabilities, that the
reason was not the dominant reason. While there is no legal requirement for the accused to prove
that there was a another reason for the discriminatory conduct, it would be common for the
accused to present evidence that there was another reason for the discriminatory conduct, such as
underperformance or misconduct by the worker.
11
Human Rights Committee, General Comment No. 32, Article 14: The right to equality before courts and tribunals
and to a fair trial, U.N. Doc CCPR/C/GC/32 (23 August 2007) [30].
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Because the Bill will extend this provision, which places a partial burden of proof on the
accused, to the Seacare scheme, it engages and limits the right to be presumed innocent until
proven guilty. However, this limitation is not inconsistent with the right because it is necessary
to achieve a legitimate objective and because it is a reasonable and proportionate approach to
achieving that objective.
The legitimate objective of Part 6 is to provide strong protections for individuals who act to
improve safety at their workplace or otherwise act to raise safety issues or facilitate compliance.
Workplace safety relies on every person, not just inspectors, playing a proactive in raising health
and safety issues, and that this proactive role must be encouraged and supported. Workers will be
most likely to be proactive about safety if they have strong protections from being disadvantaged
for raising health and safety concern, acting in health and safety representative roles or assisting
their representatives or the regulator. The need to safeguard the safety of all individuals at the
workplace--promoting the right to safe and healthy workplaces--is a significant and legitimate
objective which can justify reasonable and proportionate limitations on other rights.
As noted in the National Review into Model Occupational Health and Safety Laws' Second
Report, there may be many reasons why a person who subjects another person to a disadvantage
took that action and it is excessively difficult, if not impossible, for a prosecutor to provide the
reason for the conduct. As a result, discrimination laws in Australia typically place the burden on
the person engaging in the conduct of proving that it was not for an alleged reason.12 Without
this reversed burden of proof, these laws would be ineffective at discouraging discriminatory
behaviour. As such, the reversed onus of proof is necessary to achieve the legitimate objective of
these laws.
The limitation is reasonable and proportionate, because it is only a partial reversal of the onus of
proof. The prosecution must still establish, beyond a reasonable doubt, that there was
discriminatory conduct, and that the circumstances for a prohibited reason to arise existed at the
time of the discriminatory conduct. The prosecution must also adduce evidence to link the
discriminatory conduct to the prohibited reason. Further, if the prosecution does establish these
elements, the burden of proof for the accused to establish that the prohibited reason was not the
dominant reason is on the balance of probabilities, not beyond reasonable doubt. This is a
proportionate and reasonable reversal of the burden of proof which is limited to a single element
of the offence.
In considering whether this limitation is reasonable and proportionate, it should also be noted
that while section 104 does create a criminal offence with a significant maximum financial
penalty, it cannot result in and an individual being subject to more serious criminal sanctions,
such as imprisonment.
Right to privacy
The existing provisions of the WHS Act, extended to the maritime industry by this Bill, also
engage the right to privacy by conferring right of entry powers on union officials and creating
inspector powers to require an individual to provide their name and address. While these
provisions are already in effect and are not amended by the Bill, for completeness an analysis of
their impact on the right to be presumed innocent until proven guilty is included below.
12
National Review into Model Occupational Health and Safety Laws, Second Report to the Workplace Relations
Ministers' Council, January 2009, [29.60]-]29.67].
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Article 17 of the ICCPR provides that 'no one shall be subjected to arbitrary or unlawful
interference with [their] privacy, family, home or correspondence'. General Comment No. 16 by
the Human Rights Committee elaborates on Article 17, stating that the 'gathering and holding of
personal information on computers, data banks and other devices, whether by public authorities
or private individuals or bodies, must be regulated by law'.13
Part 7 of the WHS Act confers rights on a person who holds an office in, or is an employee of, a
union and who holds an entry permit (permit holders) to enter workplaces and exercise certain
powers while at those workplaces. The Part also sets out requirements of permit holders who are
exercising or proposing to exercise a right of entry and describes conduct that must not be
engaged in by permit holders or other persons at a workplace in relation to permit holders.
The Bill will extend the application of the WHS Act to vessels within the Seacare scheme. By
broadening the application of the right of entry provisions, the Bill engages the right to privacy.
However, the Bill does not limit the right to privacy, because the right of entry provisions will
not interfere with privacy in a way which would be either arbitrary or unlawful, and the use or
disclosure of any information gathered using the right of entry provisions is regulated by law.
Entry rights are limited to permit holders, and any misuse of entry rights can lead to both civil
penalties and to the individual's permit being suspended or revoked. Further, entry rights can
only be exercised for specified purposes which are focused on the promotion of safe and healthy
workplaces. Entry rights are also limited so that permit holders cannot enter any part of a
workplace that is used solely for residential purposes.
While exercising an entry right, permit holders can inspect and make copies of employee
records. To ensure this power cannot result an arbitrary interference with privacy, this power can
only be used for the purposes of an inquiry into a suspected contravention of the WHS Act.
Further, any use or disclosure of information obtained in this way is regulated by the Privacy Act
1988, which sets out a comprehensive scheme for the protection of personal information, with
significant financial penalties for non-compliance.
Section 185 of the WHS Act allows an inspector to require a person to tell the inspector his or
her name and residential address if the inspector:
finds the person committing an offence against the Act (paragraph 185)(1)(a));
reasonably suspects the person has committed an offence against the Act, based on
information given to the inspector, or the circumstances in which the person is found; or
reasonably believes the person may be able to assist in the investigation of an offence
against the Act.
An inspector can request proof of a person's name or address, if they reasonably believe they
have given a false name or address.
By extending this provision to the Seacare scheme, the Bill engages the right to privacy.
However, the Bill does not limit the right to privacy, because the inspector powers will not
13
Human Rights Committee, General Comment No. 16 - Article 17 (The right to respect of privacy, family, home
and correspondence, and protection of honour and reputation), U.N. Doc HRI/GEN/1/Rev.9 (Vol. 1) (28 September
1988) [10].
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interfere with privacy in a way which would be either arbitrary or unlawful, and the use or
disclosure of any information gathered using the inspector powers is regulated by law.
Inspectors' power to request a person provide their name and address is strictly limited to the
situations listed above. Further, the use and disclosure of information gathered by inspectors will
be regulated by the Privacy Act 1988.
Changes to workers' compensation
The Bill implements the Government's decision to make minor amendments to update the
current workers' compensation arrangements under the Seafarers Act. The reform proposals
adopt the recommendations in the Seacare Review, commissioned by the former Government in
2012, with a view to aligning the Seacare scheme with the Comcare scheme except where those
recommendations are obsolete or inappropriate.
The changes include such amendments as:
extending the definition of 'medical treatment' to include further types of compensable
treatment;
reducing the threshold for compensation for a permanent impairment that is a binaural
hearing loss from 10% to 5%;
changing the level of contribution by employment to an injury that is a disease from a
contribution in a 'material degree' to 'significant degree'; and
changing coverage of psychological injuries to exclude an injury suffered as a result of
'reasonable administrative action taken in a reasonable manner' instead of an injury
suffered as a result of 'reasonable disciplinary action'.
The package will also include some mirror amendments to the Seafarers Act and the Safety,
Rehabilitation and Compensation Act 1988 (SRC Act) to align them with benchmarks for the
National Injury Insurance Scheme and link the pension age to the Social Security Act 1991.
Right to Equality and Non-Discrimination
Articles 2 and 26 of the ICCPR ensure that no one is denied their rights because of a
prohibited ground (for example, race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status). This recognises that all
persons are equal before the law and are entitled without any discrimination to the equal
protection of the law.
Right to social security
Article 9 of ICESCR states that 'States Parties ... recognize the right of everyone to social
security'. General Comment 19 by the Committee on Economic, Social and Cultural Rights sets
out the essential elements of the right to social security, including that 'States parties should ...
ensure the protection of workers who are injured in the course of employment or other
productive work'.14
14
Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art. 9),
U.N. Doc E/C.12/GC/19 (2008), [17].
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Many of the changes made by the Bill engage the Right to Equality and Non-Discrimination and
the Right to Social Security. Some changes limit these rights, however, some promote them.
These changes and their interaction with these rights are discussed in detail below.
Rights of Person with Disabilities
Article 26(1) of the CPRD requires States Parties to 'take effective and appropriate measures,
including through peer support, to enable persons with disabilities to attain and maintain
maximum independence, full physical, mental, social and vocational ability, and full inclusion
and participation in all aspects of life'.
Change from 'material degree' to 'significant degree'
Under the current Seafarers Act, a disease, or an aggravation of a disease, is compensable if it
was contributed to in a 'material degree' by the employee's employment. The Bill amends this
provision, providing that a disease, or an aggravation of a disease, is compensable if it was
contributed to, 'to a significant degree', by the employee's employment. 'Significant degree' is
defined to mean 'a degree that is substantially more than material'.
This change will result in some diseases which are currently compensable being non-
compensable. As such, it limits the right to social security.
The use of the phrase 'material degree' in the current Seafarers Act is based on the SRC Act,
which used this term when enacted in 1988. The term 'material degree' was intended to require
an employee to show there was a 'close connection' between the disease and the employee's
employment.15 Since this enactment, the term material degree has been interpreted in court and
tribunal decisions so to erode the extent to which employment must have contributed to the
contraction or aggravation of the disease.16 To address this concern, the SRC Act was amended
in 2007 to require a significant contribution, in order to provide an effective test of work-
relatedness.
The legitimate objective of applying a 'significant contribution' test is to re-establish a clear
requirement for a disease to be closely related to an employee's employment in order for
workers' compensation to be payable. The Committee has previously agreed that ensuring
employers are not liable for diseases which have no significant basis in employment may be a
legitimate objective for the purposes of human rights law.17
The change from 'material contribution' to 'significant contribution' is rationally connected to
this legitimate objective because the contribution test is the primary focus for employers,
tribunals and courts in determining whether a disease is compensable. The change is reasonable
and proportionate to this objective because it will align the Seacare scheme with the Comcare
scheme and most state and territory schemes. Further, for employees who contract a disease
which has a high incidence in their type of employment, clause 10 will provide a presumption
that there was a significant contribution by the employment. This will ensure that employees
15
Commonwealth, Parliamentary Debates, House of Representatives, 27 April 1988, 2192-3 (the Hon, Brian Howe
MP, Minister for Social Services).
16
See, eg, Treloar v Australian Telecommunications Commission [1990] FCA 511; Peters and Comcare [2004]
AATA 435 (3 March 2004).
17
Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament, 11 August 2015
[1.309].
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who develop diseases with known links to their type of employment are not affected by this
change.
Change from 'disciplinary action' to 'reasonable administrative action'
The Seafarers Act currently aims to prevent compensation claims from being used to obstruct
legitimate and reasonable disciplinary action by excluding from the definition of 'injury' any
condition (usually a psychological condition) that has arisen as a result of such action. To this
end, section 3 currently provides that the definition of 'injury' does not include a disease, injury
or aggravation suffered as a result of reasonable disciplinary action taken against an employee or
as a result of a failure by an employee to obtain a promotion, transfer or benefit in connection
with their employment.
The Bill introduces a new clause 5A with a definition of an injury and a new clause 5B with a
definition of disease. Clause 5A provides that an injury, disease or aggravation suffered as a
result of reasonable administrative action is not compensable. Subclause 5B(2) includes a non-
exhaustive list of actions which are 'administrative action'.
Because 'administrative action' is a broader concept than 'disciplinary action' this change will
mean that some injuries which are currently compensable will no longer be compensable. This
change--which would align the Seacare scheme with the Comcare scheme and several state
schemes--is primarily concerned with psychological injuries. Psychological injuries make up
only 2.47% of claims in under the Seacare scheme.18 As such, there are unlikely to be many, if
any, claims affected by these changes. None-the-less, because the changes reduce the availability
of compensation, they limit the right to social security and health.
The legitimate objective of the amendments is to ensure the Act applies as intended, and to
ensure that employers can take reasonable action in managing their workplaces.
The amendments are reasonable, necessary and proportionate for a number of reasons.
First, the amendments are necessary to ensure that there is clarity around the scope of the
exclusion following decisions such as Commonwealth Bank of Australia v Reeve [2012] FCAFC
21; (2012) 199 FCR 463 (noting that this decision related to the SRC Act).
Second, the amendments are reasonable and proportionate because employees will remain
eligible to be compensated for their condition if it arose because of an unreasonable
administrative action. The amendment will allow employers to engage in the reasonable
management of their business, including takeovers, restructures and other operational matters,
without concern that these actions may consequently form the basis of workers' compensation
claims.
Employers need to be able to give fair and constructive feedback on an employee's performance,
make necessary decisions to respond to poor performance or changing operational requirements
and, if necessary, take disciplinary action and be able to effectively direct and control the way
work is carried out.
To the extent that the amendments may disproportionately affect employees suffering from
psychological injuries, the right to non-discrimination is indirectly engaged. However, the
18
Data supplied to the Department of Employment by the Seacare Authority.
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indirect differential treatment of employees with psychological injuries is permissible as the
amendments are justified by a legitimate aim and are an appropriate, objective and necessary
approach to achieving that aim.19 First, as explained above, the new provisions will ensure that it
applies as intended and to provide clarity around the scope of the exclusion. Secondly, the new
provisions are proportionate as there is no other means of achieving the objective that imposes
less interference with the right to non-discrimination. Finally, the provisions are objective as they
apply equally to all employees and all types of injuries suffered as a result of reasonable
management action.
Journey claims provisions
The Bill amends the Seafarers Act to clarify that travel for a private or domestic reason will not
be presumed to be arising out of, or in the course of, a seafarer's employment except in limited
circumstances. New subsections 9(3A), 9(3B) and 9(3C) apply to an employee who suffers an
injury while travelling on a journey from the employee's place of work where the employee has
delayed commencing that travel, has taken an indirect travel route or has interrupted the travel
for a private or domestic reason . That injury will generally not treated as having arisen in the
course of employment unless the delay or interruption is no more than 72 hours and the
employer has given written agreement to the delay or interruption.
Consistent with the request of the industry during consultations the provisions are intended to
clarify that an employee who takes a holiday before returning home at the end of a voyage is not
considered to be still operating in the course of their employment, unless the employer has
agreed to a short break of up to 72 hours.
While on the face of this amendment it appears to limit the right to social security, it does not
limit that right in practice as employers are currently free to refuse any seafarers' leave on a
return journey where there is a break in service. The provision clarifies when a seafarer will be
covered by the Seacare scheme, facilitating flexibility for seafarers to have a short break on
return with agreement of their employer, although potentially reducing the number of situations
where a seafarer will be entitled to claim workers' compensation. While limiting the right to
social security, this amendment is reasonable, necessary and proportionate. The limitation
recognises that the workers' compensation is intended to provide compensation for injuries that
are work-related and not intended to cover situations where the safety of the employee is largely
beyond the employer's control or in situations that are appropriately covered by other types of
compensation e.g. travel insurance. The provision for the employee to delay or interrupt their
journey for up to 72 hours with the employer's agreement is a reasonable accommodation of an
employee's right to social security. The limitation also provides greater certainty to seafarers and
employers as to when they are covered by the scheme and is consistent with the expectations of
industry.
Aligning retirement age
The Seafarers Act currently provides for compensation payments to cease when an injured
employee reaches 65-the standard retirement age. The rationale behind ceasing compensation
19
European Court of Human Rights and European Union Agency for Fundamental Rights, 2010. Handbook on
European non-discrimination law. Available at: http://fra.europa.eu/sites/default/files/fra_uploads/1510-FRA-
CASE-LAW-HANDBOOK_EN.pdf; European Union non-discrimination directives: Racial Equality Directive
Article 2(2)(b); Employment Equality Directive Article 2(2)(b); Gender Goods and Services Directive Article 2(b);
Gender Equality Directive (Recast) Article 2(1)(b).
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payments is that once the employee has reached pension age they can move from workers'
compensation payments to age pension payments.
However, the pension age will rise beyond 65 incrementally to age 67, creating an increasing gap
between the cessation of payments under the Seafarers Act and minimum qualifying age for the
age pension. The Bill amends section 38 to include new subsections 38(1) and (2) to remove the
reference to 65 and insert 'pension age'. This amendment removes the gap and ensures that, in
the event that the pension age rises further in the future, there will not be a gap.
This change promotes the right to social security by allowing an injured employee to receive
weekly compensation until their pension age. Additionally, employees who are injured at any
time after two years prior to their pension age continue to be entitled to receive weekly
incapacity payments for a period of 52 weeks.
Mirror amendments are also made to equivalent provisions in the SRC Act by the Bill.
Changes to household and attendant care services for catastrophically injured workers
The Bill makes a change to the amount of compensation in respect of attendant care and
household services a catastrophically injured employee is entitled to, to facilitate it being
aligned it with the minimum benchmarks in the proposed National Injury Insurance Scheme
(NIIS).
The NIIS is being developed as a federated model of separate, state-based, no-fault schemes
that provide minimum benchmark lifetime care and support for people who have sustained a
catastrophic injury in each of the four streams: motor vehicle accidents, workplace accidents,
medical accidents and general/other accidents. The Commonwealth entered into Heads of
Agreement with each of the states and territories (except Western Australia) regarding
funding for the NIIS. As part of these Heads of Agreement, the states and territories
committed to develop, agree and implement nationally-consistent minimum benchmarks for
workplace accidents by 1 July 2016.
While minimum benchmarks have been developed for state and territory motor vehicle accident
compensation schemes, there has not yet been agreement on the minimum benchmarks for
workplace accidents, although a Regulation Impact Statement has been released. However, one
of the benchmarks for motor vehicle accident compensation schemes is unlimited access to
household and attendant care services where a person suffers a 'catastrophic injury' which is also
defined in the benchmarks.
The current Act requires amendments to facilitate it being able to meet the minimum benchmark
in respect of employees who suffer a catastrophic injury as a result of a workplace accident in the
attendant care and household care entitlements.
The current Act provides that injured employees are entitled to compensation for household
services and attendant care services to a maximum of $449 per week. This compensation is not
payable within the first 28 days of an injury. The change inserts a definition of 'catastrophic
injury' into the Seafarers Act and inserts a new provision removing the cap on the compensation
payable for household service and attendant care services for catastrophically injured employees
and also removes the 28 day preclusion period for catastrophically injured employees. These
changes will also allow for rules to set compensation or other benefits that the injured worker is
entitled to receive, according to the NIIS benchmarks.
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This change promotes the right to social security by providing greater workers' compensation
entitlements to catastrophically injured seafarers. These changes recognise the greater care
requirements of workers with catastrophic injuries and ensure that the level of benefits paid does
not limit an employee from receiving the full level of attendant care services they require. This
change also positively engages the right of persons with disabilities. Seafarers who are
catastrophically injured may be considered to have a disability for the purposes of international
law and this change provides better support for those seafarers.
Changes to coverage
The coverage rules for the Seacare scheme determine whether a seafarer will have workers
compensation and WHS protections under the Seacare scheme or state or territory laws. As such,
changes to coverage engage both the right to social security and the right to safe and healthy
working conditions.
Under the new coverage provisions, the scheme will apply to vessels which are registered in
Australia, or which are registered outside Australia but which have a majority Australian crew.
The scheme will not apply to any vessel which is wholly or substantially engaged in voyages and
other operations which are within a single state or the Northern Territory. Vessels in the
Northern Territory will be treated in the same way as all other vessels. A number of specific
exclusions have also been included to ensure the scheme does not apply to vessels which have
traditionally operated outside the scheme, such as local tourism vessels and fishing vessels.
The new coverage provisions have been designed to deliver greater certainty and voyage-to-
voyage consistency about whether a vessel is covered by the Seacare scheme, while maintaining
its existing scope of application. This existing scope reflects the accepted operation of the
scheme within the industry, and an appropriate divide between state and federal regulation, in
what is generally a state matter.
Right to social security
The right to social security has been detailed above.
The Seafarers Act provides support for seafarers who have been injured at work by way of
compensation payments, payment of medical expenses, permanent impairment benefits and other
benefits, such as access to rehabilitation support. The Seafarers Act is part of a broader system of
(primarily state and territory) legislation which ensures all Australian employees have access to
workers' compensation when injured at work. Workers' compensation represents just one
avenue of social security that is available to injured employees and, where an injury is not
covered by workers' compensation legislation, other safety nets exist to meet medical and living
costs.
Workers' compensation legislation varies extensively across Australia, with different benefit
levels and structures, eligibility rules, rehabilitation structures, restrictions on access to common
law damages and dispute resolution systems. Whether an injured employee will be better off
under a particular system depends on a wide variety of factors, such as income, impairment
level, preferences for weekly or lump sum payments and return to work prospects. Further, in
some cases a scheme which provides a lower level of monetary benefits will have more effective
return to work performance, meaning that the scheme, while appearing less generous, delivers
better overall outcomes for injured employees. As such, any changes to scheme coverage rules--
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expansion, contraction or otherwise--will limit the right to social security for some injured
employees and promote it for others.
The purpose of the new coverage rules is to limit the application of the Seacare scheme to those
vessels which have traditionally been regulated by the Seacare scheme. As such, the scheme will
not apply to vessels which are wholly or predominately used for operations and voyages which
are within a particular state or territory, as these vessels are more appropriately regulated by state
or territory legislation. Similarly, the scheme will not apply to classes of vessels which are
already covered by state or territory legislation, such as local tourism vessel, recreation vessels
and fishing vessels. Establishing new coverage rules which maintain the historical application of
the scheme is a legitimate objective for legislation relating to what is predominately state and
territory matter. For clarity, all fishing vessels, including vessels that do sometimes travel
overseas, will be covered by state and territory workers compensation and WHS laws.
Achieving this legitimate objective necessarily impacts on the right to social security, because it
can only be achieved through state and territory legislation applying to employees on some
vessels and the Seacare scheme applying to employees on other vessel. As noted, this will at
times promote and at other times limit the right to social security. Where there are limitations,
these are necessary to achieve this legitimate objective. Further, the limitations are reasonable, as
all employees will continue to be covered by a workers' compensation scheme which will
provide compensation for lost wages from incapacity, impairment and medical costs and support
their return to work. Variations in these entitlements reflect the different policy priorities of the
state and territory governments and decisions within their own parliamentary systems, and
should not be considered an unreasonable limitation on human rights. The limitations are also
proportionate, as there no approach to coverage which would have a more limited effect on
human rights which would also achieve the legitimate objective of maintaining the existing
scope of the Seacare scheme.
Changes to restore consistency with existing equivalent provisions in the SRC Act, where
appropriate, include reducing the percentage hearing loss required to be established before
compensation is payable from 10% to 5%. This is consistent with human rights.
Right to safe and healthy working conditions
The right to safe and healthy working conditions is contained in article 7 of ICESCR. The right
is discussed in full below in relation to the changes to WHS regulation.
WHS laws in Australia have been harmonised across the majority of jurisdictions, so variations
in which law applies have little to no effect on the quality of protection for workers. As such,
although the coverage of the Seacare scheme affects the source of WHS protections for seafarers
(that is, state or Commonwealth legislation), it does not affect the substance of these protections.
The provisions relating to coverage are compatible with the right to safe and healthy working
conditions because no matter how coverage is set, seafarers will have a strong system of WHS
protections while at work.
Further, clarifying and improving the coverage rules will assist with the effective regulation of
WHS for vessels within scheme, promoting the right to safe and healthy working conditions.
As such, the new coverage provisions are consistent with human rights.
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Changes to Governance
The Bill will transfer the functions of the Seacare Authority, which administers the scheme with
the support of Comcare, to the SRCC and Comcare. The governance of the Seacare scheme will
be integrated with the governance of the Comcare scheme, which will improve its efficiency and
effectiveness.
These amendments merely transfer functions between government entities and do not engage
human rights.
Changes to insurance obligations
The Bill will make a number of changes to tighten employers' obligations in relation to carrying,
reporting and displaying their insurance arrangements. These changes will ensure Australia is
complying with amendments to the Maritime Labour Convention which will take effect on 18
January 2017.
These changes promote the right to social security under article 9 ICESCR as the
measures ensure that a system of financial security through social security or
insurance is in place to ensure compensation to seafarers in the case of death or long
term disability due to an occupational injury, illness or hazard. It also ensures that
adequate insurance is maintained and ongoing unless the relevant Australian authority
is notified at least 30 days before the period of the financial security ends. These
changes also require seafarers to be made aware if the insurance arrangements are
terminated.
The right to safe and health working conditions in article 7 of ICESCR are also
additionally enhanced by these changes to the MLC.
Amendments to the Work Health and Safety Act 2011 of general application
There are a small number of amendments to the WHS Act which are of general application i.e.
they are not specific to the Seacare scheme. These amendments are to:
remove the requirement on businesses to provide Comcare with an up to date list of
Health and Safety Representatives (HSRs);
replace the reference to giving 'directions' in a Provisional Improvement Notice (PIN),
with giving 'recommendations'; and
clarify that Judges and Heads of Mission are not 'officers' for the purposes of the WHS
Act.
Right to safe and healthy working conditions
Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR)
recognises a right to enjoy just and favourable working conditions--which includes a right to
safe and healthy working conditions.
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Statement of Compatibility with Human Rights
In relation to this right, the Committee on Economic, Social and Cultural Rights has stated that
'people must be afforded minimum conditions of occupational health and safety, and States
parties are responsible for adopting policies and laws to that end'.20
Australia principally complies with this obligation through a system of Commonwealth, state and
territory work health and safety laws, which have been harmonised across the majority of
jurisdictions through the adoption of model laws (the model WHS laws). The Commonwealth
has given effect to the model laws in enacting the WHS Act.
Implementation of amendments to model WHS laws
The model WHS laws were developed under the Inter-governmental Agreement for Regulatory
and Operational Reform in Occupational Health and Safety (IGA) to form a system of
harmonised work health and safety laws. The IGA requires each jurisdiction to enact or
otherwise give effect to their own laws that mirror the model WHS laws as far as possible.
In May 2014, the Council of Australian Governments (COAG) asked Ministers with
responsibility for WHS to investigate ways in which the model WHS laws could be improved,
with a particular focus on reducing regulatory burden and making it easier for business and
workers to comply. The report titled 'Improving the model Work Health and Safety Laws' (the
2014 Report) sets out the Ministers' recommendations for improvements to the model WHS laws
based on the findings from their examination of the model WHS laws.
The recommendations contained in the 2014 Report were considered by WHS Ministers and a
number of changes to the model WHS Act were agreed to in-principle by the majority of
Ministers.
The Bill amends provisions relating to PINs and removes a record keeping requirement as agreed
by WHS Ministers on 11 April 2014.
Reference to 'recommendations' rather than 'directions' in PINs
A HSR may issue a PIN under section 90 of the WHS Act if he or she reasonably believes
that a person is contravening that Act. A PIN is a written notice requiring the contravention to
be remedied or a likely contravention to be prevented.
Subsection 93(1) provides that a PIN may include directions which outline the measures to be
taken to remedy or prevent the contravention. Although directions may specify a particular
method to remedy or prevent a contravention, there may be other methods available which
would achieve the same outcome. While the language in section 93, such as 'directions' and
'the measures to be taken', suggests that compliance with a direction is compulsory,
compliance with a specific direction is optional and other measures can be utilised instead.
The 2014 Report noted that it is not correct for HSRs to require one method of compliance
when others are available.
20
UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 16 (Rev.1), The Committee on
Economic, Social and Cultural Rights, May 1996, No. 16 (Rev.1), available at:
http://www.refworld.org/docid/4794773cd.html [accessed 22 May 2014].
Seafarers and Other Legislation Amendment xv House of Representatives
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Statement of Compatibility with Human Rights
The 2014 Report also highlighted the concerns that were raised over the enforceability of
directions given under a PIN. Section 99 makes it an offence for a person issued with a PIN to
not comply with it. The COAG Report raises the issue of whether there is a difference
between failing to comply with a PIN and failing to comply with a direction made under a
PIN. Under the current provisions, non-compliance with a direction in a PIN could be
characterised as an offence under section 99.
The Bill repeals and replaces section 93 to clarify that a PIN may include recommendations
(rather than directions) about measures that may be taken by a person to prevent or remedy a
contravention.
The amendment may be viewed as a diminution of health and safety standards because it
removes terms such 'directions' and 'the measures to be taken'. However, the current wording
does not reflect the policy intent of the provision as the method by which a person remedies a
contravention is intended to be at their discretion. A PCBU will still be required to remedy the
contravention that is identified in the PIN.
This amendment will therefore not impact on the right of persons to safe and healthy working
conditions.
Requirement to provide an up-to-date list of HSRs to the regulator
The removal of the requirement on a person conducting a business or undertaking (PCBU) to
provide a copy of an up-to-date list of HSRs to Comcare does not alter the primary aspect of
section 74(1) which requires the PCBU to prepare an up-to-date list of HSRs and their
deputies and display it in a prominent place in the workplace. It merely removes the
additional burden on employers to then also provide the list to the Regulator.
Inspectors may view lists when attending a workplace and may request that a list be provided
to them (section 155 of the WHS Act). This amendment will therefore not impact on the right
of persons to safe and healthy working conditions.
Duty of officers
The Bill would amend section 247 of the WHS Act to provide that a justice of the High Court, a
judge or justice of a court created by the Parliament (judges), and a Head of Mission within the
meaning of the Public Service Act 1999 (Head of Mission), are not an 'officer' when acting in
that capacity.
Section 247 of the WHS Act establishes who an 'officer' of the Commonwealth is for purposes
of section 27. Section 27 requires 'officers' of an organisation to exercise due diligence to ensure
the business or undertaking complies with the law, by requiring appropriate structures, policies
and resources to be put in place. The duty is intended to apply to persons who make or
participate in making decisions that are typically undertaken at the highest levels of an entity,
such as decisions about governance and management, the allocation of resources and strategic
direction.
Because the amendment will make it clear that judges and Head of Missions are not 'officers'
when acting in that capacity, the amendment may limit the right to safe and healthy working
conditions.
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Statement of Compatibility with Human Rights
The legitimate objective of the amendment is to clarify who is 'officer' for the purposes of the
WHS Act. The amendment is reasonable, necessary and proportionate for a number of reasons.
Judges
The amendment is necessary to clarify that section 27 does not apply to judges. Although judges
occupy a senior role in their organisations the principle of judicial immunity already operates to
limit the application of the WHS Act. At common law, persons exercising judicial functions in a
court are exempt from any civil liability in respect of anything said or done by them in their
judicial capacity, and to a large extent criminal liability as well. It is not appropriate that the
WHS Act purports to regulate the role of judges in their capacity as leaders of the court.
The amendment is proportionate. Judges retain a duty to take reasonable care for their own
health and safety and the health and safety of other persons. Other health and safety duties, for
example - those of the Principal Registrar, are also unaffected.
Heads of Mission
The amendment is also necessary to clarify that section 27 does not apply to a Head of Mission.
Heads of Mission are in a unique position, having overarching responsibility for the conduct of
the Commonwealth as a whole, and not just for their agency, in a particular country or group or
countries. Although a Head of Mission may have some responsibility for work health and safety
matters it is not intended that this would make them an 'officer' for the purposes of the WHS
Act.
The amendment is proportionate as Heads of Mission continue to have duties as workers under
section 28 of the WHS Act. To the extent Heads of Mission make decisions affecting the health
and safety of others, they continue to have a statutory duty to exercise reasonable care. The
duties of other senior government officials to exercise due dilligence (for example the Secretary
of the Department of Foreign Affairs and Trade) is also not affected by the clarification.
Conclusion
The Bill is compatible with human rights because it generally promotes human rights and, to the
extent it limits human rights, these limitations are reasonable, necessary and proportionate.
Minister for Employment, Senator the Hon. Michaelia Cash
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Notes on Clauses
NOTES ON CLAUSES
In these notes on clauses, the following abbreviations are used:
AAT Administrative Appeals Tribunal
AAT Act Administrative Appeals Tribunal Act 1975
Advisory Group The Seacare Advisory Group
AMSA Australian Maritime Safety Authority
Bill Seafarers and Other Legislation Amendment Bill 2016
Levy Act Seafarers Rehabilitation and Compensation Levy Act 1992
Seafarers Rehabilitation and Compensation Levy Collection
Levy Collection Act
Act 1992
Levies Bill Seafarers Safety and Compensation Levies Bill 2016
Levies Collection Seafarers Safety and Compensation Levies Collection Bill
Bill 2016
MLC Maritime Labour Convention
NIIS National Injury Insurance Scheme
OPGGS Act Offshore Petroleum and Greenhouse Gas Storage Act 2006
OHS(MI) Act Occupational Health and Safety (Maritime Industry) Act 1993
Seacare Authority Seafarers Rehabilitation and Compensation Authority
Review of the Seacare Scheme by Mr Robin Stewart-
Seacare Review
Crompton (Report - March 2013)
Seafarers Act Seafarers Rehabilitation and Compensation Act 1992
SRC Act Safety, Rehabilitation and Compensation Act 1988
SRCC Safety, Rehabilitation and Compensation Commission
WHS Work Health and Safety
WHS Act Work Health and Safety Act 2011
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Notes on Clauses
Clause 1 - Short title
1. Clause 1 provides for the short title of the Act to be the Seafarers and Other
Legislation Amendment Act 2016.
Clause 2 - Commencement
2. The table in this clause sets out when the provisions of the Bill commence.
3. Sections 1 to 3 and anything in the Act not elsewhere covered in the table commence
on the day the Act receives the Royal Assent.
4. Schedule 1, Part 3 of Schedule 2, Division 2 of Part 4 of Schedule 2, Parts 4 to 7 of
Schedule 3 and Division 2 of Part 9 of Schedule 3 commence on 1 July 2017.
5. Part 2 of Schedule 2 and Part 3 of Schedule 3 (which implement obligations under the
Maritime Labour Convention) commence the later of the 28th day after the Act receives the
Royal Assent and 1 January 2017.
6. The remainder of the provisions commence the day after the Act receives the Royal
Assent.
Clause 3 - Schedules
7. This clause provides that legislation that is specified in a Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule operates according to its
terms.
8. The Bill comprise 3 schedules:
Schedule 1 repeals the Financial Management and Accountability (Establishment of
Special Account) Determination 2002/06, the OHS(MI) Act, the Levy Act and the
Levy Collection Act;
Schedule 2 makes amendments to the Seafarers Act, the SRC Act, the WHS Act and to
a number of other Commonwealth Acts and instruments; and
Schedule 3 contains detailed transitional provisions.
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Repeals - Schedule 1
SCHEDULE 1 - REPEALS
9. Schedule 1 repeals various Acts that are part of the Seacare scheme.
Financial Management and Accountability (Establishment of Special Account) Determination
2002/06
Item 1 - The whole of the determination
10. Item 1 repeals the Financial Management and Accountability (Establishment of
Special Account) Determination 2002/06. This establishes the special account for the current
Safety Net Fund.
11. The Special Account will be continued in existence by section 107 of the Seafarers
Act, as a special account under that Act.
Occupational Health and Safety (Maritime Industry) Act 1993
Item 2 - The whole of the Act
12. Item 2 repeals the OHS(MI) Act.
13. Item 191 of Schedule 2 amends the WHS Act to extend its application in place of the
OHS(MI) Act. Part 6 of Schedule 3 provides transitional arrangements in relation to this.
Seafarers Rehabilitation and Compensation Levy Act 1992
Item 3 - The whole of the Act
Seafarers Rehabilitation and Compensation Levy Collection Act 1992
Item 4 - The whole of the Act
14. Items 3 and 4 repeal the Levy Act and Levy Collection Act. They will be replaced by
the Acts created by the Seafarers Safety and Compensation Levies Bill 2016 and the Seafarers
Safety and Compensation Levies Collection Bill 2016.
15. Part 5 of Schedule 3 provides transitional provisions for the repeal of these Acts.
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Amendments - Schedule 2
SCHEDULE 2 - AMENDMENTS
Part 1 - Catastrophic injuries to seafarers etc.
Seafarers Rehabilitation and Compensation Act 1992
16. Part 1 of Schedule 2 amends the Seafarers Act to insert a new definition of
'catastrophic injury' and provide for the payment of uncapped weekly compensation for
household and attendant care services obtained as a result of catastrophic injury.
17. The NIIS is being developed as a federated model of separate, state-based no-fault
schemes that provide lifetime care and support for people who have sustained a 'catastrophic
injury' caused by four types of accidents: motor vehicle accidents, workplace accidents,
medical accidents and general/other accidents. The NIIS builds on existing accident
compensation schemes - for example, for workplace accidents - to complement the National
Disability Insurance Scheme (NDIS).
18. The amendments in this Part will align the workers' compensation arrangements
for the Seacare scheme with minimum benchmarks proposed for the NIIS for
compensation for household and attendant care services. Compensation is payable for
household and attendant care services under section 43 of the Seafarers Act. The new
provision will remove the cap on compensation for catastrophic injuries.
Item 1 - Section 3
19. 'Catastrophic injury' will be defined by the legislative rules and will be a subset of
'injury' as defined in section 3. The intention is that the definition will reflect that in the
NIIS.
Item 2 - Section 43 (heading)
20. This item repeals the heading in section 43 and substitutes a new heading
consequential to the amendments in items 3 and 4.
Item 3 - Subsections 43(1) and (4)
21. This item amends subsections 43(1) and (4) to make clear that compensation in
respect of an injury under section 43 applies as a result of an injury to an employee that is
a non-catastrophic injury. Section 43 sets out the criteria for determining whether
household and attendant care services are reasonably required and the qualification
requirements for providers of attendant care services. Subsections 43(2) and 43(4)
respectively set out the amount payable per week as compensation for household services
and attendant care services that an employee reasonably requires as a result of an injury to
the employee. Subsection 43(6) provides that compensation for household services is
generally not payable within the first 28 days starting on the day of the injury.
Item 4 - At the end of Division 5 of Part 2
22. This item inserts a new section 43A that provides for the payment of weekly
compensation for household and attendant care services obtained as a result of an injury
that is a catastrophic injury. The criteria for determining whether household and attendant
care services are reasonably required and the qualification requirements for providers of
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Amendments - Schedule 2
attendant care services remain the same as those under section 43. However, section 43A
does not provide a capped amount of weekly compensation payable for household and
attendant care services, rather the amount payable is such amount as is 'reasonable in the
circumstances'. Further, section 43A does not exclude compensation for household
services for the first 28 days after the day of the injury, meaning that compensation under
section 43A for household services is available from the date of injury. There is no limit
on the length of time household and attendant care services remain compensable.
Item 5 - Subsection 76(1) (definition of determination)
23. This item amends subsection 76(1) consequential to the amendments in item 4 to
insert new section 43A in the definition of determination for the purposes of
reconsideration of determinations and reviews of decisions by the AAT (see Part 6 of the
Seafarers Act).
Item 6 - At the end of Part 9
24. This item inserts new section 144 which enables the Minister to make legislative
rules prescribing matters required or permitted by this Act to be prescribed by the rules or
rules that are necessary or convenient to be prescribed for carrying out or giving effect to
the Act. These rules are legislative instruments.
25. Subsection 144(2) makes clear that the legislative rules may not create an offence
or civil penalty, provide powers of arrest or detention or entry, search or seizure, impose a
tax, set an amount to be appropriated from the Consolidated Revenue Fund under an
appropriation in the Act or directly amend the text of the Act.
Part 2 - Implementation of amendments to the Maritime Labour Convention
relating to insurance obligations of employers of seafarers
Seafarers Rehabilitation and Compensation Act 1992
26. Part 7 of the Seafarers Act requires employers to be insured or indemnified for the
full amount of the employer's liability under that Act and to notify its employees and the
SRCC of its insurance or indemnification arrangements. These amendments are necessary
to give effect to recent amendments to the Maritime Labour Convention.
27. Breaches of the provisions are strict liability offences. This means the prosecution
will have to prove only the conduct of the accused. Where the accused produced evidence
of an honest and reasonable, but mistaken, belief, it will be incumbent on the prosecution
to establish that there was not an honest and reasonable mistake of fact.
28. The application of strict liability to offences in this Part has been carefully
considered during drafting of the Bill and it is considered justified because of the
regulatory context in which they are imposed. There is a public interest in ensuring that the
regulatory requirements are observed and employers can reasonably be expected, because
of their professional involvement, to know the requirements of the law. Offences are
subject to low penalty amounts (20 penalty units).
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Amendments - Schedule 2
Item 7 - At the end of section 93
29. This item inserts new subsection 93(5) which requires an employer, when applying
for membership of a protection and indemnity association or an employers' mutual
identity association, to provide the association with full details of all monetary and non-
monetary remuneration paid to or provided to employees relevant to the working out of the
membership fee.
30. New subsection 93(6) provides that state or territory stamp duty is not payable on
an employer's membership of a protection and indemnity association or an employers'
mutual indemnity association in respect of employer liabilities under the Act. This is
consistent with the exemption in respect of policies of insurance or indemnity.
Item 8 - After section 94
31. This item inserts new section 94A which requires an employer to notify the
Seacare Authority of any changes to, or cancellation of, a policy or membership, as the
case may be. An employer must do so within 14 days of the change, cancellation or
termination, as the case may be. The requirement to notify the Authority will only apply
until the transition time (see Part 7 of Schedule 3). After the transition time, an employer
will be required to notify the SRCC.
32. New subsection 94A(2) provides that a person who fails to provide these details
commits an offence and may be liable to a penalty of 20 penalty units. Subsection 94A(3)
provides that this offence is an offence of strict liability.
Item 9 - At the end of Division 1 of Part 7
33. This item inserts new sections 95A and 95B. New section 95A requires an
employer who becomes aware that the employer's policy or membership is to be cancelled
or terminated, to notify each employee of that fact. The employer must do so as soon as
practicable after becoming aware that the policy or membership is to be cancelled or
terminated and before the policy or membership is cancelled or terminated.
34. New subsection 95A(2) provides that an employer that fails to provide these details
commits an offence and may be liable to a penalty of 20 penalty units. New subsection
95A(3) provides that this offence is an offence of strict liability.
35. New section 95B requires an employer or an operator of an Australian registered
vessel (where the vessel is operated by a person other than the employer) to display a
certificate of insurance that complies with the requirements of subsection 95B(2) and an
information statement that complies with the requirements of subsection 95B(3) on board
the vessel.
36. New subsection 95B(5) provides that a person who fails to display this information
commits an offence and may be liable to a penalty of 20 penalty units. Subsection 95B(6)
provides that this offence is an offence of strict liability.
37. New subsection 95B(7) provides the definition of 'operator' of a vessel in this
section as a person with overall general control and management of the vessel or a person
who has assumed responsibility for the vessel from a person mentioned in paragraph (a) or
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Amendments - Schedule 2
a person who has a legal or beneficial interest in the vessel. 'Vessel' is defined in this
section as a ship.
Part 3 - Other amendments relating to seafarers
38. This schedule makes amendments to the following Acts and instruments as a
consequence of the repeal of the OHS(MI) Act and other amendments made in Schedule 2:
Offshore Petroleum and Greenhouse Gas Storage Act 2006;
Safety, Rehabilitation and Compensation Act 1988;
Seafarers Rehabilitation and Compensation Act 1992;
Work Health and Safety Act 2011.
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Item 10 - Subsection 640(3) (paragraph (b) of the definition of Commonwealth
maritime legislation)
39. This item makes a consequential amendment to subsection 640(3) of the OPGGS
Act to maintain the current exclusion of maritime WHS legislation to facilities subject to
the OPGGS Act (which contains its relevant WHS regulation). To avoid regulatory
overlap, this section makes it clear that the WHS Act as it applies to the maritime industry
because of new subsection 12(8A) (inserted by item 191 of this Schedule) does not apply
to facilities to which the OPGGS Act applies.
Safety, Rehabilitation and Compensation Act 1988
Item 11 - Subsection 4(1)
40. This item inserts definitions of the terms 'designated actuary' and 'Seacare
Advisory Group' (see item 17 below).
Item 12 - Section 69 (note)
41. This item amends the note to section 69 of the SRC Act by inserting a reference to
the Seafarers Act in the list of legislation that confers additional functions on Comcare.
Item 13 - Section 72A (heading)
Item 14 - Subsection 72A(1)
Item 15 - Subsection 72A(2)
42. These items amend section 72A of the SRC Act as a consequence of the abolition
of the Seacare Authority.
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Amendments - Schedule 2
Item 16 - Section 89B (note)
43. This item amends the note to section 89B of the SRC Act by inserting a reference
to the Seafarers Act and the Seafarers and Other Legislation Amendment Act 2016 in the
list of legislation that confers additional functions on the SRCC.
Item 17 - After section 89R
44. This item inserts new section 89RA into the SRC Act. This will enable the
Chairperson of the SRCC to establish a Seacare Advisory Group (the Advisory Group).
45. While section 89RA provides the Chairperson with discretion and flexibility in
relation to establishment of the Advisory Group, it is intended that the Advisory Group
would be established, particularly during the initial transition of functions from the
Seacare Authority to the SRCC. The Advisory Group will provide important advice and
recommendations on certain functions of the SRCC in relation to the Seacare scheme.
46. Subsection 89RA(2) sets out the matters about which the Advisory Group will
provide assistance to the SRCC and advice or information to the SRCC or Comcare. The
functions of the Advisory Group are:
Assisting the SRCC to perform its functions in relation to granting opt-in
declarations and exemptions under the Seafarers Act, and developing Seacare-
specific codes of practice under the WHS Act; and
Giving advice or information to the SRCC, upon request, on matters relating to the
Seacare scheme Acts; and
Giving advice or information to Comcare about compliance by employers with
insurance obligations under section 93 of the Seafarers Act; and
Giving advice or information to Comcare where the Advisory Group considers
information or advice is likely to assist Comcare to perform its functions or
exercise its powers under the Act. Comcare may also request information or advice
from the Advisory Group; and
Providing advice or information to the designated actuary, upon request, about
matters relating to the performance of its powers under the Seafarers Safety and
Compensation Levies Act 2016 and the Seafarers Safety and Compensation Levies
Collection Act 2016; and
Such other functions as are conferred on the Advisory Group by a law of the
Commonwealth other than this Act; and
To do anything incidental to or conducive to the performance of any of the above
functions.
47. New subsections 89RA(3) and 89RA(5) require the SRCC and Comcare to have
regard to advice or information given by the Advisory Group, but new subsections
89RA(4) and 89RA(6) make clear that this does not limit the matters to which the SRCC
and Comcare may have regard.
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Amendments - Schedule 2
48. New subsection 89RA(7) provides that in exercising his or her powers under the
Seafarers Safety and Compensation Levies Act 2016, the designated actuary must have
regard to any relevant advice or information given to him or her by the Advisory Group.
Subsection 89RA(8) clarifies that subsection 89RA(7) does not limit the matters to which
the designated actuary may have regard.
49. New subsection 89RA(9) makes clear that the Advisory Group has power to do all
things necessary or convenient to be done for or in connection with the performance of its
functions.
50. New subsections 89RA(10)-(18) set out the membership of the Advisory Group.
The Advisory Group must have a minimum of two members (but can have more). At least
one member must be an employee representative and at least one must be an employer
representative.
51. New subsections 89RA(13) and (14) deal with remuneration and allowances for
members. Members will not be paid, but may be reimbursed for their expenses.
52. New subsections 89RA(15)-(18) deal with termination, resignation and terms and
conditions of appointment.
53. New subsection 89RA(19) provides that the Chair will determine the procedures of
the Advisory Group.
54. New subsection 89RA(20) provides that the Advisory Group must give the SRCC,
on request, such reports, documents and information relating to the Advisory Group's
functions.
Item 18 -- At the end of section 89S
55. This item inserts a new subsection into section 89S, which sets out the annual
reporting obligations of the SRCC.
56. The new subsection will require the SRCC's annual report to include details of the
Advisory Group, if it was constituted under new section 89RA, during the whole or part of
a financial year. Subsection 89S(4) provides that if the Advisory Group is not constituted
under section 89RA during the whole or part of a financial year, a report under section 89S
for the financial year must include a statement that sets out the reasons why the Advisory
Group was not so constituted.
57. New subsection 89S(5) makes clear that the requirements under subsection (4) do
not apply to a financial year that ended before the commencement of the subsection.
Seafarers Rehabilitation and Compensation Act 1992
Item 19 - Section 3
58. This item defines 'action for non-economic loss' for the purposes of new
subsection 55(6).
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Amendments - Schedule 2
Item 20 - Section 3 (paragraph (a) of the definition of approved Guide)
59. This item substitutes Comcare for the Seacare Authority in the definition of
'approved Guide' to transfer the function of preparing the Guide from the Seacare
Authority to Comcare, consequential to the abolition of the Seacare Authority.
Item 21 - Section 3 (definition of approved industry training course)
60. This item repeals the definition consequential to the abolition of the Seacare
Authority.
Item 22 - Section 3
61. This item inserts a definition for 'Australia', when used in the geographical sense,
as including the external Territories and 'Australian coastal sea' as meaning the area
comprising the territorial sea of Australia and the sea on the landward side of the territorial
sea of Australia and not within the limits of a state or territory.
Item 23 - Section 3 (definition of Australian General Shipping Register)
Item 24 - Section 3 (definition of Australian International Shipping Register)
Item 25 - Section 3 (definition of Australian Maritime Safety Authority)
Item 26 - Section 3 (definition of Authority)
Item 27 - Section 3 (definition of Chairperson)
Item 28 - Section 3 (definition of coastal trading)
62. These items repeal the definitions of 'Australian General Shipping Register',
'Australian International Shipping Register', 'Australian Maritime Safety Authority',
'Authority', 'Chairperson' and 'coastal trading'. Items 23, 24 and 28 are no longer
necessary. These items describe one aspect of the coverage of the Act by referring to
types of licence issued under the Coastal Trading (Revitalising Australian Shipping) Act
2012. The vessels engaging in costal trading will be captured by the other elements in the
coverage provisions set out in this Bill.
Item 29 - Section 3
63. This item inserts a definition of 'Commission' as meaning the SRCC. The note to
the provision makes clear that the SRCC is established by section 89A of the SRC Act.
Item 30 - Section 3 (definition of company trainee)
64. This item repeals the definition as it is no longer in use.
Item 31 - Section 3 (definition of constitutional corporation)
65. This item inserts a new definition of 'constitutional corporation'.
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Amendments - Schedule 2
66. 'Constitutional corporation' is defined as a corporation to which paragraph 51(xx)
of the Constitution applies; the basic coverage rules rely on employment of an employee
by a constitutional corporation as one of the conditions for coverage in section 25B (see
item 84).
Item 32 - Section 3 (definition of default event)
67. This item inserts a new definition of 'default event'. 'Default event' is used in new
section 4A to mean an insolvency event resulting in an employer being unable to meet its
liabilities under the Seafarers Act. Comcare may, by writing, declare that it is satisfied that
the employer is unable to meet its liabilities under the Act and must publish the declaration
under subsection 4A(1) on its website. The effect of Comcare declaring a default event is
that Comcare is deemed to be an employer of the employee for the purposes of the
Seafarers Act (see items 67 to 69 below). This means that various sections which refer to
'an employer' will apply to Comcare, with certain limited exceptions.
Item 33 - Section 3 (definition of designated waters)
68. This item inserts a new definition of 'designated waters' of a state. 'Designated
waters' is used to define the meaning of 'intra-State voyages or tasks' in section 25B (see
item 84). In general terms, 'designated waters' are defined to include all waters out to the
12 nautical mile territorial sea.
Item 34 - Section 3 (definition of disease)
69. This item repeals the definition and substitutes a new definition set out in new
section 5B (see item 71).
Item 35 - Section 3 (definition of emergency licence)
70. This item repeals the definitions of emergency licence and general licence because
they are no longer necessary (see item 41). These types of licence were issued under the
Coastal Trading (Revitalising Australian Shipping) Act 2012). The vessels engaging in
coastal trading will be captured by the other elements in the coverage provisions in this
Bill.
Item 36 - Section 3 (definition of financial corporation)
71. This item repeals the definition. The definition is replaced by part of the new
definition of 'constitutional corporation'.
Item 37 - Section 3
72. This item inserts new definitions for 'fish', 'fishing fleet support vessel', 'fishing
operations' and 'fishing vessel'. These definitions are used in new section 3B and are
relevant to the amendments made by item 62. 'Fish' includes turtles, dugong, crustacea,
molluscs and any other living resources of the sea or the seabed. 'Fishing operations' is
defined as the taking, catching or capturing of fish for trading or manufacturing purposes
or the processing or carrying of the fish that are taken, caught or captured. 'Fishing fleet
support vessel' means a vessel that is used wholly or primarily in activities in support of
the fishing operations of a fishing vessel or vessels, but does not include an inland
waterways vessel (see section 3B also).
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Item 38 - Section 3 (definition of foreign corporation)
73. This item repeals the definition. The definition is replaced by part of the new
definition of 'constitutional corporation'.
Item 39 - Section 3
74. This item inserts a definition for 'foreign vessel' which means a ship (within the
meaning of the Shipping Registration Act 1981) that does not have Australian nationality.
Item 40 - Section 3 (definition of Fund)
Item 41 - Section 3 (definition of general licence)
75. These items repeal definitions that are no longer required consequential to other
amendments made by the Bill. For item 41, the definition of general licence is no longer
necessary. This type of licence was issued under the Coastal Trading (Revitalising
Australian Shipping) Act 2012. The vessels engaging in coastal trading will be captured by
other elements in the coverage provisions set out in this Bill.
Items 42 and 43 - Section 3 (definition of Government ship and harbour)
76. Item 42 repeals the definition of 'government ship'. Item 43 inserts a new
definition of 'government vessel'. This item also inserts a new definition of 'harbour'.
These definitions are based on the definitions in the (now repealed) Navigation Act 1912
and are used in section 3A (see item 62 below).
Item 44 - Section 3 (definition of industry trainee)
77. This item repeals the definition of industry trainee as this term is no longer used in
the industry.
Item 45 - Section 3 (definition of injury)
78. This item repeals the definition of 'injury' and substitutes a new definition as set
out in new section 5A (see item 71).
Item 46 - Section 3
79. This item inserts two new definitions for 'inland waterways vessel' and 'local
tourism vessel'. These terms are used in section 3A.
Item 47 - Section 3 (at the end of the definition of medical treatment)
80. This item amends the definition of 'medical treatment' to enable legislative rules to
prescribe anything else for the purposes of the definition. This ensures that the definition
aligns with the definition of 'medical treatment' under the SRC Act.
Item 48 - Section 3 (definition of member)
81. This item repeals the definition of 'member' consequential to the abolition of the
Seacare Authority.
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Item 49 - Section 3
82. This item defines 'offshore floating storage or production unit' as having the
meaning set out in new section 3D and 'offshore industry mobile unit' as having the
meaning set out in new section 3C. The item also inserts a definition of 'operator', 'opt-in
declaration' and 'pension age'. 'Pension age' has the same meaning as subsection 23(5A),
(5B), (5C) or (5D) of the Social Security Act 1991. This definition is used in relation to
amendments in subsections 23(1A) and (1B) (see item 208) and subsection 44(2) (see item
99). References in the Seafarers Act to age 65 years (what once used to be the maximum
pension age) will be replaced by references to 'pension age'.
Item 50 - Section 3 (paragraph (a) of the definition of place of work)
83. This item omits 'ship' and substitutes 'vessel' in the definition of 'place of work'.
Item 51 - Section 3 (paragraph (b) of the definition of place of work)
84. This item repeals the paragraph and substitutes a new definition to make clear that
if an employee is a trainee, then the place of work includes the prescribed vessel on which
the employee performs the role of a trainee.
Item 52 - Section 3
85. This item inserts a new definition for 'port' which includes a 'harbour'.
Item 53 - Section 3 (definition of prescribed ship)
86. This item repeals the definition of 'prescribed ship'.
Item 54 - Section 3
87. This item inserts a new definition for 'prescribed vessel' and 'recreational vessel'
as having the meaning in section 3A (see item 62 below). This item also inserts the
definition of 'registered organisation' as meaning an organisation registered under the Fair
Work (Registered Organisations) Act 2009. It also inserts a definition of 'sea' as any
waters within the ebb and flow of the tide.
Item 55 - Section 3 (definition of seafarer)
88. This item repeals the definition of 'seafarer' and inserts a new definition of
'seafarer'. 'Seafarer' means a person employed on a prescribed vessel, on the business of
the vessel, other than specified categories of persons. The term is consistent with the
Navigation Act 2012.
Item 56 - Section 3 (definition of seafarer berth)
89. This item repeals the definition.
Item 57 - Section 3
90. This item inserts a definition for the 'seafarers insurance levy'. It has the same
meaning as in the Seafarers Safety and Compensation Levies Act 2016.
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Item 58 - Section 3
91. This item inserts the definition of 'significant degree' in the Seafarers Act.
92. The new definition of 'significant degree' means a degree that is substantially more
than material. This definition is used in new section 5B in relation to the definition of
'disease' (see item 71).
Item 59 - Section 3 (definition of superannuation scheme)
93. This item repeals the definition of 'superannuation scheme' and inserts a new
definition. The new definition reflects modern superannuation arrangements.
Item 60 - Section 3 (definition of trainee)
94. This item repeals the existing definition and inserts a new definition of 'trainee' as
a person who is undergoing a training course or is obtaining sea service as required by his
or her employer, prior to becoming a seafarer. The definition of 'trainee' has been
simplified to remove outdated references to 'industry trainees'.
Item 61 - Section 3
95. This item inserts definitions of 'transitional declaration' and 'vessel'. Transitional
declarations will be granted under Part 8 of Schedule 3 and are explained in the
explanatory notes for those provisions. This mechanism will enable vessels that are in the
current scheme but are not prescribed vessels under section 3A (as amended by item 62) to
stay in the scheme. The definition of 'vessel' brings into the Seafarers Act the words taken
from the (repealed) Navigation Act 1912.
Item 62 - Section 3A
New section 3A
96. This item repeals existing section 3A which relates to Ministerial declarations.
These ministerial declarations are replaced by legislative rules made under new
subsections 3A(2) and (3). The item inserts a new definition of 'prescribed vessel' in
subsection 3A(1). 'Prescribed vessel' is a key concept in the Bill and is used to delineate
coverage of the Act.
97. Paragraphs 3A(1)(a) and (b) replicate the effect of the current definition of
'prescribed ship' in the Seafarers Act, which refers to the (now repealed) Navigation Act
1912. Paragraph 3A(1)(a) generally replicates paragraph 10(a) of the Navigation Act 1912,
while paragraph 3A(1)(b) generally replicates paragraph 10(c) of that Act, but without the
requirement for the ship to have an Australian-based owner or operator. Paragraph
3A(1)(c) provides that a vessel that is declared under subsection (2) to be a prescribed
vessel is also a prescribed vessel for the purposes of subsection 3A(1).
98. An Australian vessel that is neither registered nor required to be registered under
the Shipping Registration Act 1981 will not be a 'prescribed vessel'. These vessels may
currently be captured by the definition of 'prescribed ship', depending on its ownership or
place of operation. These vessels may still seek transitional coverage.
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99. Paragraphs 3A(1)(d)-(k) exclude certain types of vessels. Most of these definitions
(and related provisions) are based on pre-existing maritime legislation:
'recreational vessel' is defined consistently with the Navigation Act 2012;
'inland waterways vessel' is defined consistently with the (repealed)
Navigation Act 1912;
'fishing vessel' and 'fishing fleet support vessel' are defined consistently
with the (repealed) Navigation Act 1912 (see new section 3B);
'offshore floating storage or production unit' is defined consistently with
Marine Orders - Part 60: Floating Offshore Facilities (see new section
3D). This term encapsulates both 'floating, production, storage and offtake'
facilities and 'floating storage units';
'offshore industry mobile unit' is defined consistently with the (repealed)
Navigation Act 1912 (see new section 3C);
'government vessel' is already defined in the Seafarers Act. Importantly,
this term does include vessels which belong to the Australian Defence
Force, but does not include a government owned vessel which is privately
operated, which will be a prescribed vessel.
100. Paragraph 3A(1)(k) excludes a 'local tourism vessel' which is defined in section 3 to
mean a vessel that is wholly or predominately engaged in tourism, other than tourism which
involves international, interstate or inter-territorial (other than to the Coral Sea Islands
Territory) voyages. 'Tourism' is not defined in the Bill and is intended to have its ordinary
meaning. This definition is intended to capture vessels engaged in the marine tourism
industry providing services such as transport, sightseeing or diving.
101. Paragraph 3A(1)(l) excludes vessels that have been declared not to be a prescribed
vessel. The legislative rules may declare a vessel to be, or not to be, a prescribed vessel.
This replicates the power in current section 3A of the Seafarers Act (which will be
repealed) for the Minister to declare to ship to be, or not to be, a 'prescribed ship'.
102. Vessels which are subject to a transitional declaration will also be 'prescribed vessels'
except in relation to Divisions 2 and 3 of Part 1A (meaning that they cannot apply for an opt-
in declaration or an exemption). Transitional declarations will be granted under Part 8 of
Schedule 3 to the Bill and are explained in the explanatory notes for those provisions. This
mechanism will enable vessels that are in the current scheme but are not prescribed vessels
under new section 3A to stay in the scheme.
New section 3B - Fishing vessels
103. This section defines the terms 'fishing vessel' and 'fishing fleet support vessel',
which are excluded from the definition of 'prescribed vessel' in new section 3A. These
definitions are the same as those used in the (repealed) Navigation Act 1912.
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New section 3C - Offshore industry mobile unit
104. This section defines the term 'offshore industry mobile unit', which means an
'offshore industry drilling vessel', 'offshore industry floating structure' and 'offshore
industry living quarters barge', which in turn includes a vessel fitted for living quarters for
more than 12 people and is an 'offshore industry fixed structure'. Each of these is defined. An
offshore industry mobile unit is excluded from the definition of 'prescribed vessel' in new
section 3A. This definition is the same as that used in the (repealed) Navigation Act 1912
(subject to some drafting modernisations).
New section 3D - Offshore floating storage or production unit
105. This section defines the term 'offshore floating storage or production unit', which is
excluded from the definition of 'prescribed vessel' in new section 3A. This definition is
consistent with Marine Orders - Part 60: Floating Offshore Facilities. This term
encapsulates both 'floating, production, storage and offtake' facilities and 'floating storage
units'.
Item 63 - Subsection 4(1) (paragraph (b) of the definition of employee)
106. This item omits 'or' from the definition consequential to the amendment in item 64
repealing paragraph 4(1)(c) of the definition of 'employee'.
Item 64 - Subsection 4(1) (paragraph (c) of the definition of employee)
107. This item repeals paragraph (c) from the definition of 'employee' as it is no longer
relevant in the industry.
Item 65 - At the end of subsection 4(1)
108. The note to subsection 4(1) draws the reader's attention to section 18A of the Acts
Interpretation Act 1901. This states that definitions of words also apply to other grammatical
forms of the word.
Item 66 - Subsection 4(2)
109. This item repeals subsection 4(2) as 'industry trainees' and 'Seafarers Engagement
Centre' are terms that are no longer relevant to the industry. See also the repeal of the
definition of industry trainee in section 3 (see item 44).
Item 67 - Subsection 4(3)
110. This item repeals the subsection and replaces it with a new subsection 4(3) which
ensures that a reference to an 'employee' continues to apply to claimants even if they
cease employment with the employer where they suffered an injury to which the Seafarers
Act applies. The subsection also provides that if a 'default event' occurs in relation to the
employer of a seafarer or trainee, then for the purposes of the Seafarers Act, the seafarer or
trainee is taken to be employed by Comcare (rather than the Seacare Authority) and
Comcare is taken to be their employer. The term 'default event' is defined in new
subsection 4A to mean an insolvency event resulting in the employer being unable to meet
the employer's liabilities under the Seafarers Act. The effect of this provision is that in
these circumstances Comcare is deemed to be an employer of the employee for the
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Amendments - Schedule 2
purposes of the Seafarers Act. This means that various sections which refer to 'an
employer' will apply to Comcare, with certain limited exceptions.
Item 68 - Subsection 4(5)
111. This clarifies that references to the 'employment' of a trainee is a reference to their
performing the role of a trainee, for example, undergoing training and obtaining sea service.
Item 69 - After section 4
112. In certain situations Comcare may become the responsible employer for an injury or
accident under the Bill because of a 'default event'. This provision specifies when a default
event has occurred.
113. If Comcare is satisfied that an employer is unable to meet its liabilities under the
Seafarers Act, Comcare will declare in writing that a default event has occurred. These
declarations will be published on Comcare's website.
114. New section 106 provides Comcare with information gathering powers, including for
the purposes of determining if it should declare that a default event has occurred (see item
176).
115. For the avoidance of doubt, subsection 4A(6) clarifies that a declaration under
subsection 4A(1) is not a legislative instrument within the meaning of section 8 of the
Legislation Act 2003. This provision is declaratory of the law and does not amount to an
exemption from the Legislation Act 2003.
Item 70 - Section 5
116. This item substitutes 'vessel' for 'ship' throughout the section.
Item 71 - After section 5
New section 5A - Injury
117. New section 5A defines the term 'injury', a key provision of the Seafarers Act, as
compensation is only payable in respect of an injury that meets this definition.
118. The new definitions for 'injury' and 'disease' implement recommendation 4.4 of the
Seacare Review. Recommendation 4.4 recommends that for clarity and consistency, the
definitions of injury and disease in the Seafarers Act should be amended to align with
sections 5A and 5B of the SRC Act.
119. Subsection 5A(1) of the SRC Act has a different exclusionary provision for
psychological injuries from the current definition in the Seafarers Act. The Seafarers Act
currently excludes anything suffered by an employee as a result of 'reasonable disciplinary
action' or an employee's 'failure to obtain a promotion, transfer or benefit'as an injury for the
purposes of the Act. The SRC Act replaced these definitions with the broader concept of
'reasonable administrative action taken in a reasonable manner' in 2007. A new section
5A(2) was also added to the SRC Act providing a non-exhaustive list of the actions which
may constitute 'reasonable administrative action'.
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120. New subsection 5A(1) excludes from the definition of 'injury' any disease, injury or
aggravation suffered by an employee as a result of 'reasonable administrative action'.
Subsection 5A(2) provides a non-exhaustive list of the actions which may constitute
'reasonable administrative action'.
121. This provision is consistent with a similar exclusion from the bullying provisions of
the Fair Work Act 2009--subsection 789FD(2) of that Act. Both section 789FD of the Fair
Work Act 2009 and paragraph 5A(1) of the Bill recognise that employers have rights and
obligations to take appropriate management action and make appropriate management
decisions.
New section 5B - Disease
122. Also in line with the Seacare Review recommendation 4.4, new subsection 5B(1) of
the Bill defines 'disease' to align with a similar provision in subsection 5B of the SRC Act to
mean an ailment or aggravation of an ailment that was 'contributed to, to a significant degree,
by the employee's employment'. The term 'ailment' is defined in section 3 to mean any
physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or
gradual development). The term 'significant degree' is a new definition in section 3 and
means 'a degree that is substantially more than material'.
123. The intent is to establish a test requiring a claimant to prove that his or her
employment was more than a mere contributing factor in the contraction or aggravation of the
ailment and ensure that an employer is not liable to pay compensation for ailments which
have little, if any, connection with employment. The expression 'significant degree' is
intended to emphasise the extent of the contribution of the employment to the condition as
well as the causal connection between the employment and the condition.
124. New subsection 5B(2) provides a non-exhaustive list of matters that may be taken into
account in determining whether the ailment was contributed to, to a 'significant degree', by
the employee's employment. The matters include, but are not limited to:
the duration of the employment;
the nature of, and particular tasks involved in, the employment;
any predisposition of the employee to the ailment or aggravation;
any activities of the employee not related to his or her employment; and
any other matters affecting the employee's physical or psychological health.
Item 72 - Section 9
125. This item substitutes 'vessel' for 'ship' throughout the section.
Item 73 - Paragraph 9(2)(c)
Item 74 - Paragraph 9(2)(c)
126. These items simplify the drafting of paragraph 9(2)(c).
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Item 75 - Paragraph 9(2)(d)
127. This item amends paragraph 9(2)(d) consequential to the amendment of the definition
of 'trainee' in section 3.
Item 76 - Subparagraph 9(2)(e)(iii)
128. This item repeals the subparagraph as Seafarers Engagement Centres are no longer
used in the industry.
Item 77 - Subparagraph 9(2)(e)(v)
129. This item clarifies the drafting to make clear that if the employee to whom the
provision applies is a trainee, the trainee was undergoing training that he or she was required
to obtain by his or her employer.
Item 78 - Subsection 9(3)
130. This item omits paragraph 9(3)(iii).
Item 79 - After subsection 9(3)
131. New subsections 9(3A),(3B) and (3C) provide that subparagraph 9(2)(e)(i), (iv), (v) or
(vi) do not apply to an injury suffered by an employee while travelling in the circumstances
set out in subsections 9(3A), (3B) and (3C). This means that if an employee suffers an injury
while travelling, the injury will not be treated as having arisen in the course of employment
unless one of the exceptions set out in the subsections applies.
132. New subsection 9(3A) provides that if an employee suffers an injury while travelling
from the employee's place of work and the employee delayed commencing the travel for a
private or domestic reason, the injury is not treated as having arisen in the course of
employment unless:
The delay is attributable to circumstances beyond the control of the employee; or
The delay does not exceed 72 hours and the employer has given written agreement to
the delay.
133. New subsection 9(3B) provides that if an employee suffers an injury while travelling
and the travel was by a route that was not direct having regard to the means of transport used
and the reason for taking the indirect route was private or domestic, the injury is not treated
as having arisen in the course of employment unless taking the route was attributable to
circumstances beyond the employee's control.
134. New subsection 9(3C) provides that if an employee suffers an injury while travelling
and there is an interruption of the travel and the reason for the interruption was private or
domestic, the injury is treated as not having arisen in the course of employment unless:
the interruption is attributable to circumstances beyond the control of the employee; or
the interruption does not exceed 72 hours and the employer has given written
agreement to the interruption.
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Item 80 - Subsection 9(5)
135. This item repeals the subsection, consequential to the repeal of the definition of
'industry trainee'.
Item 81 - Subsection 13(3)
136. This item repeals the subsection as Seafarers Engagement Centres are no longer
relevant to the industry.
Item 82 - Section 19
137. This item repeals section 19 which sets out the application of the Seafarers Act. New
sections 25A to 25L set out new coverage arrangements for the Seafarers Act (see Part 3 of
Schedule 2).
Item 83 - Section 20A
138. This item repeals the exemption of employment provisions. New sections 25M to 25S
set out arrangements for exemptions (see Part 3 of Schedule 2).
Item 84 - After Part 1
Part 1A - Coverage
139. This Part deals with the coverage of the Seacare scheme.
140. The existing Seacare scheme is confined in scope, only applying to employers and
employees in a defined part of the broader maritime industry. The scheme generally covers
employers and employees on ships which regularly operate in multiple states or
internationally in order to ensure they have the benefit of a single national system of work
health and safety and workers' compensation. However, there are longstanding issues
regarding the coverage of the existing scheme, creating uncertainty for governments,
regulators, employers and employees.
141. The Bill addresses the Seacare scheme's longstanding coverage issues. The new
coverage rules are broadly similar in scope to the current Seafarers Act but provide greater
certainty and clarity.
Division 1 - Introduction
New section 25A - Simplified outline of this Part
142. New section 25A contains a simplified outline of Part 1A. The simplified outline is
included to assist readers to understand the substantive provisions of Part 1A, but is not
intended to be comprehensive. Readers should rely on the substantive provisions of Part 1A.
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Division 2 - Employment covered by this Act
New section 25B - Basic coverage rules
143. New section 25B, together with the definition of 'prescribed vessel' (see new section
3A), sets out the proposed coverage of the Seafarers Act.
144. New subsection 25B(1) provides that the Act applies to the employment of employees
(defined in section 4) on a prescribed vessel, unless the vessel is used wholly or
predominately for voyages or other tasks (defined in paragraph 25B(5)) which are wholly
within the 'designated waters' (defined in section 3) of a particular state or the Northern
Territory.
145. The 'designated waters' of a particular state or territory are the portion of the
'territorial sea' which are adjacent to that state or territory, plus the internal waters of the
state or territory. Generally, this term will capture all the waters within 12 nautical miles of
the state or territory's coastal line, plus their internal waters.
146. Unlike the current coverage of the Seacare scheme, subsection 25B(1) will treat ships
operating in the Northern Territory in the same way as ships operating in any state.
147. New subsection 25B(2) extends coverage to trainees who are not currently employed
on a prescribed vessel, but are undergoing an onshore training course in connection with, or
for the purposes of, employment on a prescribed vessel. When trainees are obtaining sea
service on a vessel covered by the Act, they will be covered by subsection 25B(1) as
employees on a prescribed vessel.
148. New subsection 25B(3) and paragraphs 25B(1)(b) and (2)(b) ensure that the Act only
applies to vessels which the Commonwealth has sufficient constitutional power to regulate.
For the Act to apply to a prescribed vessel it must satisfy the coverage test in paragraphs
25B(1)(a) or 25B(2)(a) (or have an opt-in declaration or transitional declaration -- see
sections 25C and 25D) and meet one or more of the constitutional conditions set out in
subsection 25B(3). A vessel is not covered by the Seafarers Act merely because it meets one
of the constitutional conditions in subsection 25B(3).
149. New subsections 25B(5) and (6) clarify how the coverage rule will operate in relation
to intra-state coastal shipping. The provisions are intended to make sure that a voyage
between two places in the same state are treated as a voyage 'wholly within' that state's (or
territory's) designated waters, even if the vessel left the designated waters for part of the
voyage, because doing otherwise would not be reasonably practicable. This recognises that
intra-state (or intra-territorial) shipping routes may involve a vessel to leaving the designated
waters of a state (or territory) for a variety of reasons. Such voyages should still be treated as
intra-state, given their beginning and end is within the same state, and vessel is only leaving
the state's designated waters because this is the safest or most effective route. A reference to
a 'particular State' is synonymous with a 'single State'. Subsection 25B(7) has the same
effect for intra-territorial voyages.
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Amendments - Schedule 2
Example 1 -- Voyaging between states
The Enterprise is a vessel registered on the Australian General Shipping Register under
the Shipping Registration Act 1981 which is engaged to move cargo between
Melbourne and Launceston. It is operated by, and crewed by employees of, an
Australian company.
The Enterprise satisfies paragraph 3A(1)(a) of the definition of 'prescribed vessel', and
does not fall within any of the exclusions in paragraphs 3A(d)-(l). Its voyages between
Melbourne and Launceston are not wholly within the designated waters of a particular
state -- they are in the designated waters of both Victoria and Tasmania, as well as the
waters in between. Subclause 25B(5) will not apply to these voyages, because they
begin and end in different states. As such, the vessel is not being used wholly or
predominately for voyages, or other tasks, that are wholly in the designated waters of a
particular state (or the Northern Territory), so paragraph 25B(1)(a) is satisfied.
Because the employer of employees on the Enterprise is a constitutional corporation,
the constitutional condition in paragraph 25B(3)(a) is satisfied. The conditions in
paragraphs 25B(3)(b) and (d)(ii) would also be satisfied, however, it is only necessary
to identify if one condition is satisfied.
As such, the Seafarers Act will apply to the employment of employees on the
Enterprise.
Example 2 -- Voyaging within a state
The Intrepid is a vessel registered on the Australian General Shipping Register under
the Shipping Registration Act 1981 which is usually engaged to move cargo between
Brisbane and Gladstone. However, it also moves some cargo between Brisbane and
Sydney. It is operated by, and crewed by employees of, an Australian company.
The Intrepid satisfies paragraph 3A(1)(a) of the definition of 'prescribed vessel', and
does not fall within any of the exclusions in paragraphs 3A(d)-(l). Its voyages between
Brisbane and Gladstone are either wholly within the designated waters of Queensland
or, if there are parts of the voyage where it is not reasonably practicable for the Intrepid
to remain within the designated waters of Queensland, subclause 25B(6) will apply,
deeming the voyage to be within the designated waters of Queensland. Its voyages
between Brisbane and Sydney will not be wholly within the designated waters of a
particular state, because they will be (at least) within the designated waters of both
Queensland and New South Wales. Subclause 25B(6) will not apply to these voyages,
because they begin and end in different states.
As long as the Intrepid is predominately used for the voyages and other tasks between
Brisbane and Gladstone-- that is, voyages and other tasks wholly within the
designated waters of a particular state--it will not be covered by the Bill, because it
will not satisfy paragraph 25B(1)(a). As such, the Seafarers Act will not apply to the
Intrepid, even during occasional inter-state voyages and other tasks, as long as it is still
predominately used for intra-state voyages and other tasks. Employees on the vessel
would instead be covered by either state or Northern Territory workers' compensation
legislation, determined using the uniform 'state of connection' test set out in all state
and territory workers' compensation legislation.
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Example 3 -- Offshore tasks
The Serenity is a foreign-flagged vessel, owned and operated by a foreign corporation.
Its crew are Australian residents. The Serenity operates as an offshore supply ship on
the north-west coast of Australia in relation to off-shore platforms which are more than
12 nautical miles off the coast of West Australia.
The Serenity satisfies paragraph 3A(1)(b) of the definition of 'prescribed vessel', and
does not fall within any of the exclusions in paragraphs 3A(d)-(l). Its voyages and
other tasks involve going outside the designated waters of Western Australia. As such,
it is not wholly or predominately used for voyages or other tasks wholly within the
designated waters of a particular state, so satisfies paragraph 25B(1)(a).
Because the employer of employees on the Serenity is a constitutional corporation, the
constitutional condition in paragraph 25B(3)(a) is satisfied. The conditions in
paragraphs 25B(3)(b) and (c) would also be satisfied, however, it is only necessary to
identify if one condition is satisfied.
As such, the Seafarers Act will apply to the Serenity.
Example 4 -- Relocation voyages
The Normandy is a vessel registered on the Australian General Shipping Register under
the Shipping Registration Act 1981 which operates as a harbour tug. The Normandy
operates in a harbour for various periods before moving to a new location--sometimes
inter-state--to obtain more work. It is operated by, and crewed by employees of, an
Australian company.
The Normandy satisfies paragraph 3A(1)(a) of the definition of 'prescribed vessel', and
does not fall within any of the exclusions in paragraphs 3A(d)-(l). While operating as a
harbour tug, the Normandy does not leave the designated waters of its current state or
territory. As such, during these times it is being used for voyages and tasks that are
wholly within the designated waters of a particular state--that is, those voyages and
tasks do not take it outside the designated waters of the state where it is currently
operating. When the Normandy relocates, these voyages will often take it outside the
designated waters of a particular state. However, unless these relocations are extremely
regular, it will still be used predominately for voyages, or other tasks, that are wholly in
the designated waters of a particular state.
As such, the Seafarers Act would not apply to the Normandy, including when it is
relocating between ports in different states. Employees on the vessel would instead be
covered by either state or Northern Territory workers' compensation legislation,
determined using the uniform 'state of connection' test set out in all state and territory
workers' compensation legislation.
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New section 25C - Opt-in vessels
150. New section 25C will extend coverage to vessels which have opted into the scheme
under Division 3 of Part 1A of the Bill.
151. Subsection 25C(2) extends coverage to trainees who are not currently employed on a
vessel that has opted in, but are undergoing training in connection with, or for the purposes
of, employment on a vessel that has opted in.
152. Subsections 25C(3) and (4) ensure that the Seafarers Act only applies to opt-in vessels
which the Commonwealth has sufficient constitutional power to regulate.
153. Subsection 25C(5) ensures that a vessel which has opted into the scheme will
continue to be covered if any of the conditions on the opt-in declaration are breached. This
will ensure that an employer's breach of conditions do not affect an injured employee's
access to workers' compensation and rehabilitation under the Seafarers Act.
New section 25D - Transitional Vessels
154. New section 25D will extend coverage to vessels which are subject to a transitional
declaration. Transitional declarations will be granted under Part 8 of Schedule 3 to the Bill
and are explained in the explanatory notes for those provisions.
155. Subsections 25D(3) and (4) ensure that the Seafarers Act only applies to transitional
vessels which the Commonwealth has sufficient constitutional power to regulate.
Division 3 - Opt-in declarations
156. This Division provides a mechanism whereby vessels can opt-in to the scheme. Opt-in
declarations will be granted by the SRCC on application by an owner, operator or employer.
157. The introduction of an opt-in mechanism implements recommendation 2.3(a) of the
Seacare Review.
New section 25E - Application for opt-in declaration
158. This section enables the owner or operator of a prescribed vessel, or an employer of
employees on a prescribed vessel, to apply to the SRCC for an opt-in declaration in relation
to the vessel.
159. Subsections 25E(2), (3), (4), (5) and (6) set out various requirements in relation to an
application.
160. Subsection 25E(6) enables the application form to require the applicant to state they
have taken reasonable steps to inform affected employees and their representatives of the
application. Because an application for an opt-in declaration could affect the workers'
compensation entitlements and work health and safety protections of employees on the
vessel, it is important these employees are made aware of the application.
161. The application form will not require the applicant to directly notify every affected
employee--this would be excessively burdensome. The applicant must take reasonable steps
to inform their employees, for example by posting notices around the affected vessel and/or
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including a notice about the application in a staff newsletter. If the opt-in declaration is
granted, it will also be published on the SRCC's website (see subsection 25H(13)).
162. The duration of an opt-in declaration cannot exceed three years (1,095 days).
However, subsections 25E(8) and 25E(9) deal with renewal applications that, in effect,
extend the duration of an opt-in declaration for up to another three years. If an application to
renew an opt-in declaration is made more than 28 days before the existing declaration would
expire, the existing declaration will continue in effect until the renewal is either granted or
refused.
New section 25F - Further information
163. This clause empowers the SRCC to seek further information in relation to an
application for an opt-in declaration. A failure to comply with an information request may
result in the SRCC refusing to consider, or take any action in relation to, the application.
New section 25G - Withdrawal of application
164. This section provides that an applicant may withdraw an application for an opt-in
declaration and that this does not prevent the applicant subsequently making a fresh
application. If an application is withdrawn, the SRCC must refund any fee paid in relation to
the application.
New section 25H - Opt-in declaration
165. This section provides that the SRCC must consider an application for an opt-in
declaration having regard to the matters specified in subsections 25H(4) and either make, or
refuse to make, a declaration. Subsection 25H(5) prevents the SRCC from granting an opt-in
declaration that would be contrary to Australia's international law obligations. Subsection
25H(6) provides that an opt-in declaration may be subject to conditions. An opt-in declaration
must specify the duration of the declaration and cannot have retrospective effect.
166. The legislative rules will be able to set out matters that the SRCC must consider when
deciding whether to make an opt-in declaration.
167. An opt-in declaration made in response to a renewal application comes into force
immediately after the expiry of the previous opt-in declaration and remains in force for the
period (not exceeding 1,095 days) specified in the declaration.
168. The SRCC must make a decision within 28 days of either receiving the application or,
where the SRCC has requested further information under new section 25F, receiving that
information. If the SRCC does not make a decision within that time frame, it will be deemed
to have made a declaration in accordance with the application.
169. The SRCC is required to give a copy of an opt-in declaration to the owner and
operator of the vessel to which the declaration relates and publish the declaration on its
website. An opt-in declaration is not a legislative instrument.
170. If the SRCC refuses to make a declaration, it must give written notice to the applicant.
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New section 25J - Suspension or revocation of opt-in declaration
171. This section empowers the SRCC to suspend or revoke an opt-in declaration either on
its own initiative or on application by the owner or operator of the vessel, or the employer of
the employees covered by the declaration.
172. New subsections 25J(5), (6) and (7) set out requirements for an application to suspend
an opt-in declaration. Subsection 25J(7) enables the application form to require the applicant
to state they have taken reasonable steps to inform affected employees and their
representatives of the application. Because the suspension or revocation of an opt-in
declaration would affect the workers' compensation entitlements and work health and safety
protections of employees on the vessel, it is important employees are made aware of the
application.
173. The application form will not require the applicant to directly notify every affected
employee--that would be excessively burdensome. The applicant must take reasonable steps
to inform their employees, for example by posting notices around the affected vessel and/or
including a notice about the application in a staff newsletter.
174. In addition, before the SRCC can decide to suspend or revoke an opt-in declaration, it
must post a notice of the proposed suspension or revocation on its website, inviting
submissions. If a person makes a submission within seven days of the notice being posted,
the SRCC must consider this submission. This ensures procedural fairness to affected parties.
175. New subsection 25J(8) sets out the matters the SRCC must have regard to in deciding
whether to suspend or revoke an opt-in declaration. Matters may be prescribed by the
legislative rules.
176. New subsection 25J(9) requires the SRCC to consult before deciding whether to
suspend or revoke an opt-in declaration by publishing a notice on its website setting out the
reasons for the proposed suspension or revocation and inviting persons to make submissions
to the SRCC within 7 days after the notice is published. The SRCC must consider any
submissions received within the 7 day period.
177. New subsections 25J(10) and 25J(11) provide that the SRCC must notify all interested
parties, including any person who made a submission under subsection (9), of a decision to
suspend or revoke an opt-in declaration and publish the instrument of suspension or
revocation on its website within 14 days of the suspension or revocation. If the owner,
operator, employer or person who made a submission under subsection (9) objected to the
suspension or revocation, the SRCC must give them a statement setting out the reasons for
the suspension or revocation.
178. An opt-in declaration has no effect while it is suspended (new section 25J(12)) and if
an application is made for suspension or revocation of an opt-in declaration and the SRCC
decides not to suspend or revoke the declaration, it must give written notice of the decision to
the applicant (new section 25J(13)).
New subsection 25K - Review of decisions
179. This section provides that applications may be made to the AAT for review of the
following decisions relating to opt-in declarations:
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whether an opt-in declaration should be made;
whether an opt-in declaration should be subject to conditions; and
whether an opt-in declaration should be suspended or revoked.
New section 25L - Extended meaning of owner
180. This section provides that the 'owner' of the vessel includes each of the persons who
hold a part of the legal ownership of the vessel.
Division 4 - Exemption of employment
181. This Division provides a mechanism whereby the employment of some or all
employees on a particular vessel may be exempted from the application of the Bill and the
levy arrangements.
182. Exemptions will be made by the SRCC, either on its own initiative or on application
by an owner or operator of a prescribed vessel, or by an employer of employees on a
prescribed vessel.
New section 25M - Exemption of employment
183. New section 25M provides that the SRCC may exempt, either generally or otherwise,
the employment of some or all employees on a particular vessel from the application of the
Seafarers Act and the levies established by the Levies Bill and Levies Collection Bill. The
SRCC can do so either on its own initiative or on application by an owner, operator or
employer.
184. New subsection 25M(5) sets out the matters the SRCC must have regard to when
making an exemption decision, including the matters (if any) prescribed by the legislative
rules and such other matters (if any) as the SRCC considers relevant. Subsection 25M(6)
provides that the SRCC must not grant an exemption that would be contrary to Australia's
obligations under an international agreement.
185. New subsection 25M(7) provides that an exemption may be subject to conditions (if
any) set out in the instrument of exemption.
186. New subsections 25M(8), 25M(9), 25M(10) and 25M(11) provide that an exemption
cannot have retrospective effect and remains in force for one year or a shorter period
specified in the instrument of exemption.
187. New subsection 25M(12) provides that if the SRCC makes an instrument of
exemption in response to an application that is a renewal application, the instrument comes
into force immediately after the expiry of the instrument that was in force when the
application was made and remains in force for one year.
188. New subsection 25JM13) provides that subsections (9), (10) and (12) have effect
subject to new section 25Q which deals with the suspension or revocation of an exemption.
189. New subsection 25M(14) requires the SRCC post a notice of the proposed exemption
on its website, and invite submissions. If a person makes a submission within seven days of
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the notice being posted, the SRCC must consider this submission. This ensures procedural
fairness to affected parties.
190. New subsection 25M(15) requires the SRCC to make a decision within 28 days of
either receiving the application or, where the SRCC has requested further information under
subsection 25P(9), receiving that information. If the SRCC does not make a decision within
that time frame, it will be deemed to have made a decision to refuse the application
(triggering review rights).
191. New subsections 25M(16) and 25M(17) require the SRCC to give a copy of the
decision to the owner, operator or employer which the declaration relates and publish the
decision on its website. If the owner, operator, employer or person who made a submission
objecting to the exemption, the SRCC must give them a statement setting out the reasons for
the exemption.
New section 25N - Effect of exemption
192. This section provides that if an exemption is in force, the Seafarers Act and the
Seafarers Safety and Compensation Levies Act 2016 and Seafarers Safety and Compensation
Levies Collection Act 2016 do not apply to the extent specified in the exemption.
New section 25P - Application for exemption
193. New section 25P sets out various requirements in relation to an application for an
exemption and empowers the SRCC to seek further information in relation to an application
for an exemption. A failure to comply with an information request may result in the SRCC
refusing to consider, or take any action in relation to, the application.
194. New subsection 25P(4) enables the application form for an exemption to require the
applicant to state they have taken reasonable steps to inform affected employees and their
representatives of the application. Because an exemption would affect the workers'
compensation entitlements and work health and safety protections of employees on the
vessel, it is important employees are made aware of the application. Employees or their
representatives can make submissions on the application to the SRCC (see subsection
25M(14)).
195. The application form will not require the applicant to directly notify every affected
employee--that would be excessively burdensome. The applicant must take reasonable steps
to inform their employees, for example by posting notices around the affected vessel and/or
including a notice about the application in a staff newsletter.
196. This section also provides for renewal applications. A renewal application must be
made 28 days before an existing exemption would expire. If a renewal application is made,
the existing exemption continues in effect until a decision is made on the renewal application.
197. This section also enables an applicant to withdraw an application for an exemption
and provides that this does not prevent the applicant subsequently making a fresh application.
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New section 25Q - Suspension or revocation of exemption
198. This section empowers the SRCC to suspend or revoke an exemption either on its
own initiative or on application by the owner or operator of the vessel, or an employer of any
of the employees covered by the exemption.
199. New subsection 25Q(5) sets out the matters the SRCC must have regard to in deciding
whether to suspend or revoke an exemption.
200. New subsection 25Q(6) requires the SRCC to consult with, and consider any
submissions made by the owner and operator of the vessel and any relevant employer or
employee organisation before making a final decision.
201. The SRCC is required to notify all interested parties of a decision to suspend or
revoke an exemption and publish the instrument of suspension or revocation on its website.
202. New subsection 25Q(10) provides that where the SRCC refuses an application to
grant a suspension or revocation it must give written notice of the decision to the applicant.
New section 25R - Review of decisions
203. This section provides that applications may be made to the AAT for review of the
following decisions relating to exemptions:
whether an application for an exemption should be granted;
whether an exemption should be subject to conditions; and
whether an exemption should be suspended or revoked.
Exemptions on the SRCC's own motion are not reviewable.
New section 25S - Extended meaning of owner
204. This section provides that the 'owner' of the vessel includes each of the persons who
hold a part of the legal ownership of the vessel.
Item 85 - Paragraph 28(4)(a)
205. This item clarifies that the paragraph applies where an employee has already paid the
cost of the medical treatment.
Item 86 - Paragraph 28(4)(c)
206. This item clarifies that the paragraph applies in any other case not covered by
paragraph (4)(a) and (b).
Item 87 - Paragraph 29(5)(e)
207. Paragraph 29(5)(e) provides that where a prescribed child is under 19 years of age,
compensation is payable to the Seacare Authority for the benefit of the child. This item
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substitutes Comcare for the Seacare Authority consequential to the transfer of this function to
Comcare and the abolition of the Seacare Authority.
Item 88 - Subsection 30(2)
208. This item amends the maximum amount of compensation payable in respect of
funeral expenses to align it with the value of the indexed amounts in the Seafarers Act and
the SRC Act for the 2015-2016 financial years. This implements a recommendation in
Appendix E to the Seacare Review.
Item 89 - Subsection 31(14)
209. This item substitutes 'vessel' for 'ship' in the subsection.
Item 90 - Subsections 38(1) and (2)
210. Currently, subsection 38(1) provides that weekly incapacity payments are not payable
to an employee who has reached 65 years - the standard retirement age when the Act
commenced in 1992. Current subsection 38(2) allows employees who suffer an injury at age
64 or more to receive incapacity payments for a maximum of 12 months from the date of
injury, while they are incapacitated.
211. The policy behind ceasing weekly incapacity payments at 65 years, or limiting
payments to 12 months if the employee is aged 64 years or more at the date of injury, is that
once the employee has reached 65 years they can move off weekly incapacity payments and
on to other means of financial support, such as the age pension or superannuation.
212. However, under the Social Security Act 1991, the age pension age for both men and
women will rise incrementally from 65 years to 67 years between 1 July 2017 and 1 July
2023.
213. These amendments are necessary to ensure that there is no gap for injured employees
aged 65 years or more who would otherwise be unable to receive weekly incapacity payments
due to section 38 of the Seafarers Act but would also be unable to access the age pension
until he or she reached 'pension age' under the Social Security Act.
Item 91 - Subsection 39(7)
214. This item repeals subsection 39(7) and inserts a new provision. Section 39 deals with
the payment and method of calculation of compensation to employees who, as a result of an
injury, suffer a permanent impairment.
215. The amendment to subsection 39(7) implements a recommendation in Appendix E to
the Seacare Review recommending that if the employee has a permanent impairment (other
than a hearing loss) and the employer determines that the degree of permanent impairment is
less than 10%, no amount of compensation for permanent impairment is payable to the
employee.
216. Subsection 39(7A) provides that if the employee has a permanent impairment that is a
hearing loss and the binaural hearing loss suffered by the employee is less than 5%, no
amount of compensation for permanent impairment is payable to the employee.
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Item 92 - Subsection 40(4)
217. This item makes an amendment to subsection 40(4) consequential to the amendments
to subsection 39(7) made by item 91.
Item 93 - At the end of section 40
218. This item provides that if a final assessment is made of an employee's degree of
permanent impairment constituted by a hearing loss, no further amounts of compensation are
payable to the employee for a subsequent increase in the hearing loss, unless the subsequent
increase is 5% or more binaural hearing loss.
Items 94 to 98 - Subsections 42(1)-(3A), (6) and (8)
219. Item 94 transfers the function of preparing, varying or revoking the Approved Guide
to Comcare consequential to the abolition of the Seacare Authority. The amendments to
subclauses 42(3) and (3A) update the drafting to reflect the requirements of the Legislation
Act 2003.
y
Item 99 - Subsection 44(2) (definition of [number of years])
220. Subsection 44(2) sets out the formula for determining a lump sum amount in the case
where an employer makes a determination that liability to make further weekly incapacity
payments to the employee be redeemed under subsection 44(2). This item amends the
definition of 'number of years' in the formula in subsection 44(2) consequential to the
amendments to the 'age pension' in section 38 made by item 90.
Item 100 - Subparagraphs 53(d)(i), (ii), (iii) and (iv)
221. This item substitutes 'vessel' for 'ship' in the subparagraphs.
Item 101 - At the end of section 54
222. New subsection 54(3) makes clear that where an employee has suffered an injury
that results in the employee's death, subclause (1) does not prevent a dependant of that
employee bringing an action against the employer, or another employee, in respect of the
death of the first-mentioned employee. New subsection (4) makes clear that this is the case
even if the deceased employee had made an election under subsection 55(1) prior to his or
her death. This clarifies that dependants of deceased employees have access to common
law remedies against the employer of the deceased.
Item 102 - At the end of section 55
223. New subsection 55(6) clarifies that an election by an employee under subsection 55(1)
to institute an action or proceeding against the employer or another employee does not
prevent the employee from doing any other thing that constitutes an action for non-economic
loss, before or instead of formally instituting proceedings. 'Action for non-economic loss' is
defined in section 3.
Item 103 - Section 56 (heading)
224. This item substitutes a new heading.
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Item 104 - Paragraph 56(1)(c)
Item 105 - Subsection 56(1)
Item 106 - Subsection 56(1)
Item 107 - Section 57 (heading)
Item 108 - Paragraph 57(1)(b)
Item 109 - Subsection 57(1)
Item 110 - Subsection 57(1)
Item 111 - Subsection 58(3)
Item 112 - Subsection 58(5)
Item 113 - Subsection 58(5)
225. Items 104 to 110 and 112 to 113 implement a recommendation in Appendix E to
the Seacare Review. The amendments substitute references to 'makes a claim' for
'institutes proceedings' to align with the terms used in the SRC Act. The term 'makes a
claim' is broader than 'institutes proceedings' and allows an employee to negotiate
common law matters where a claim for damages has been made, whether or not formal
proceedings have been instituted by the employee.
226. Item 111 also implements a recommendation in Appendix E to the Seacare
Review. It provides that amounts received directly by the employee or paid for the benefit
of the employee will be recoverable by the employer. For example, this allows employers
to recover payments that may have been paid directly to medical providers.
Item 114 - Subsection 58(6)
227. This item implements a recommendation in Appendix E to the Seacare Review.
Subsection 58(4) provides that compensation is not payable under the Act if an employee
recovers damages. Subsection (6) provides that subsection (4) does not apply if the
damages were recovered as a result of proceedings or fresh proceedings instituted by the
employer. The amendment aligns the subsection to section 48 of the SRC Act by
substituting references to 'claim' with 'proceedings' in the provision. 'Claim' is a broader
term and may encompass settlements resulting from negotiations, whether or not that
claim or action progressed to the formal institution of proceedings.
115 - Section 59 (heading)
228. This item repeals the heading and substitutes a new heading.
Item 116 - Paragraph 59(2)(b)
Item 117 - Subsection 59(2)
Item 118 - Subsection 59(2)
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Item 119 - Paragraph 59(3)(b)
Item 120 - Paragraph 59(3)(c)
Item 121 - Subparagraph 59(3)(c)(i)
Item 122 - Subparagraph 59(3)(c)(i)
Item 123 - Subparagraph 59(3)(c)(ii)
Item 124 - Subsection 59(3)
Item 125 - Subsection 59(3)
229. These items substitute references to 'instituting proceedings, or taking over the
conduct of proceedings' with 'making a claim or a fresh claim, or taking over the conduct
of an existing claim'. This implements a recommendation in Appendix E to the Seacare
Review. The amendments also substitute 'makes a claim' for 'institutes proceedings' to
align with the terms used in the SRC Act. The term 'makes a claim' is broader than
'institutes proceedings' and allows an employee to consent to the employer taking over a
claim under subsection 59(2) whether or not formal proceedings have been instituted by
the employee.
Item 126- Subsections 59(4) to (9)
230. This item makes amendments to subsections 59(4) to (9) to substitute references to
'claim' for 'institutes proceedings' in line with similar amendments made by items 104-125
above.
Item 127 - Subsection 59(11)
Item 128 - Subsection 59(11)
Item 129 - Paragraph 59(11)(a)
Item 130 - Paragraph 59(11)(a)
Item 131 - Paragraph 59(11)(b)
Item 132 - Paragraph 60(1)(d)
Item 133 - Paragraph 60(1)(d)
Item 134 - Subparagraphs 60(2)(b)(i) and (ii)
231. These items substitute references to 'claim' for 'proceedings' in the relevant
subsections and subparagraphs, consistent with amendments made by items 104-125 and 126.
Item 135 - Subsection 62(3)
232. This item substitutes references to 'vessel' for 'ship' wherever occurring in the
provision.
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Item 136 - Paragraphs 63(2)(a) and (b)
233. This item substitutes references to 'Authority' with 'Comcare' consequential to the
abolition of the Seacare Authority.
Item 137 - Subsections 71(1) and (2)
234. This item substitutes references to the 'Fund' with 'Comcare' wherever occurring in
the provision, consequential to the abolition of the Fund.
Item 138 - Paragraph 72(1)(b)
Item 139 - Subsection 72(3)
Item 140 - Paragraph 73(2)(c)
Item 141 - Subsection 73(3)
Item 142 - Paragraph 73A(1)(b)
Item 143 - Subsection 73A(3)
Item 144 - Section 74 (heading)
Item 145 - Section 74
235. These items substitute references to the 'Authority' with 'Comcare' consequential to
the abolition of the Seacare Authority.
Item 146 - Section 75
236. This item provides that sections 72 to 74 of the Seafarers Act, which deal with claims
processing timeframes and review of decisions, do not apply to Comcare in its capacity as a
default employer under subsection 4(3).
Item 147 - Subsection 76(1) (definition of extension of time decision)
237. This item substitutes references to the 'Authority' with 'Comcare' consequential to
the abolition of the Seacare Authority.
Item 148 - Subsections 78(4) and (5)
238. Subsections 78(4) and (5) currently provide that if the employer receives a request,
the employer must arrange for an industry panel or Comcare to assist the employer in
reconsidering a determination under subsection (5). This item amends the section to remove
references to industry panels as they are no longer used in the industry. The item also amends
the requirement that an employer must arrange with Comcare for a Comcare officer to assist
with the reconsideration if the employer receives a request to provide that an employer may
arrange this. Comcare may charge the employer for an officer's services--see section 145.
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239. Subsection 78(6) provides that after reconsidering its determination, the employer
must make a decision affirming, revoking or varying the determination as the employer
thinks fit.
240. A decision made under section 78 is a 'reviewable decision', meaning that the
claimant may make an application to the AAT for review of the decision under section 88.
Section 87 provides that when a reviewable decision is made, the employer must give the
claimant the terms and reasons for the decision, together with a statement of the rights to
review in the AAT.
Item 149 - Subsection 78(7)
241. This item repeals the definition of 'industry panel' as it is no longer relevant as
references to the industry panel have been removed from section 78.
Item 150 - Paragraph 79(1)(b)
Item 151 - Subsection 79(4)
Item 152 - Section 80 (heading)
Item 153 - Section 80
242. These items substitute references to the 'Authority' with 'Comcare' consequential to
the abolition of the Seacare Authority.
Item 154 - Sections 81 and 82
243. This item provides that sections 79 and 80, which deal with the time limit for
reconsideration of a determination and employers seeking a review of Comcare's decision, do
not apply to Comcare in its capacity as a default employer under subsection 4(3).
Item 155 - Subsections 86(1) and (2)
Item 156 - Paragraph 89(4)(b)
244. These items substitute references to the 'Fund' with 'Comcare' due to the abolition of
the Fund.
Item 157 - Paragraph 89(4)(c)
245. This item amends the subsection to provide that the AAT Act is to apply as if
Comcare made the decision under review, not the Fund.
Item 158 - Subsection 91(2)
246. This item clarifies that the AAT may tax costs under section 69A of the AAT Act.
Item 159 - Part 7 (heading)
247. This item repeals the heading and substitutes a new heading which removes
reference to 'the Fund'.
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Item 160 - Division 1 of Part 7 (heading)
248. This item repeals the heading 'Division 1' consequential to the repeal of Divisions
2 and 3 of Part 7 (see item 175).
Item 160 - Subsection 93(1)
249. This item omits reference to the Fund in the subsection.
Item 162 - Subparagraph 93(1)(b)(i)
Item 163 - Paragraph 93(1)(c)
250. These items substitute references to the 'Authority' with 'Comcare' consequential
to the abolition of the Seacare Authority.
Item 164 - At the end of section 93
251. New subsection 93(7) provides that the compulsory insurance requirements in
section 93 do not apply to Comcare in its capacity as a default employer under subsection
4(3). Part 2 of Schedule 2 adds subsections (5) and (6) to section 93 which relate to the
implementation of requirements recently added to the MLC (see item 7).
Item 165 - Section 94 (heading)
Item 166 - Subsection 94(1)
Item 167 - Section 94A (heading)
Item 168 - Paragraph 94A(1)(c)
Item 169 - Section 95 (heading)
Item 170 - Section 95
252. Items 165, 166, 168, 169 and 170 substitute references to the 'Authority' with
'Comcare' in the provisions consequential to the abolition of the Seacare Authority. Item
168 substitutes the 'Comcare' for the 'Authority' in paragraph 94A(1)(c). New section
94A is inserted by item 8 in Part 2 of Schedule 2 and places obligations on employers to
notify the Seacare Authority of changes to, or cancellation or termination of, insurance or
indemnity arrangements, as required by recent amendments to the MLC. The
consequential amendment to this new section will require employers to provide notice to
the Comcare instead.
172- At the end of section 95
253. This item corrects an error in section 95 by clarifying the offence and the
application of the Criminal Code.
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Item 173 - Subsection 95B(7)
254. This item repeals the definition of 'operator' and 'vessel' in new subsection
95B(7). Section 95B is inserted by item 9 and requires information about insurance or
indemnity arrangements to be displayed on board a vessel, as required by recent
amendments to the MLC. However item 49 inserts a new definition of 'operator of a
vessel' in section 3 which applies throughout the Act and therefore the definition in
section 95B(7) is not required.
Item 174 - After section 95B
255. This section requires Comcare to insure the amount of its liability (as default
employer) that exceeds the amount prescribed by the legislative rules for a single event which
results in an injury to one or more employees.
256. Subsection 95C(2) requires the Minister to consult with Comcare and any
organisations that represent employers or employees that the Minister considers appropriate
before prescribing an amount under subsection 95C(1). However, a failure to do so does not
affect the validity of a legislative rule prescribing that amount.
Item 175 - Divisions 2 and 3 of Part 7
257. This item repeals the remaining Divisions in Part 7 which deal with arrangements
for the Fund and are no longer required.
Item 176 - Part 8 - Administration
258. This item repeals Part 8 and replaces it with new provisions. Part 8 sets out the
additional functions of the SRCC and AMSA under the Seafarers Act and re-establishes the
Seafarers Rehabilitation and Compensation Special Account. It also provides Comcare and
the SRCC with information gathering powers in relation to their roles under the Bill.
Section 103 - Simplified outline of this Part
259. This section contains a simplified outline of Part 8. The simplified outline is included
in the Bill to assist readers to understand the substantive provisions of Part 8, but is not
intended to be comprehensive. Readers should rely on the substantive provisions of Part 8 of
the Bill.
Section 104 - Additional functions of Commission
260. This section sets out the additional functions of the SRCC under the Seafarers Act.
These are broadly the same as the workers' compensation functions previously performed by
the Seacare Authority under section 104 of the Seafarers Act. The Seacare Authority's
occupational health and safety functions will now be performed by the SRCC under the WHS
Act.
Section 105 - Additional function of the Australian Maritime Safety Authority
261. This section provides that AMSA has the function of monitoring the requirement to
display information about insurance and indemnity arrangements under new section 95B of
the Bill.
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Section 106 - Power to obtain information
262. Subsection 106(1) enables the SRCC to require employers to provide documents or
information relevant to the compilation of statistics for injury prevention purposes. This
provision is not intended to abrogate the privilege against self-incrimination or the privilege
against self-exposure.
263. Subsections 106(2), (3) and (4) enable Comcare to require employers and employees
to provide documents or information in relation to compensation claims made against an
employer and Comcare's power in section 4A to determine that a default event has occurred.
264. Subsections 106(5) and (8) provide that an employer (other than Comcare in its
capacity as a default employer) that fails, without reasonable excuse, to comply with a
request for documents or information commits an offence and may be liable to a penalty of
20 penalty units. Subsection 106(5) provides that this offence is an offence of strict
liability. A strict liability offence is considered justified for this provision because of the
regulatory nature of the offence and the difficulty of proving a mental element for this type
of offence. The use of strict liability is appropriately balanced by providing for a
'reasonable excuse' defence.
Section 107 - Seafarers Rehabilitation and Compensation Special Account
265. This section re-establishes the account established by the Financial Management and
Accountability (Establishment of Special Account) Determination 2002/06 made under
subsection 20(1) of the Financial Management and Accountability Act 1997 as a statutory
special account for the purposes of section 80 of the PGPA Act. The special account is to be
called the Seafarers Rehabilitation and Compensation Special Account. The Secretary of the
Department of Employment is responsible for the Special Account.
266. The Seafarers Rehabilitation and Compensation Special Account is, in effect, a safety
net fund, supported by a levy on scheme employers (by the Seafarers Safety and
Compensation Levies Act 2016 and Seafarers Safety and Compensation Levies Collection Act
2016), which provides workers' compensation payments to employees where there is no
employer against whom a claim can be made, for example, because an employer becomes
bankrupt or insolvent or is wound up or ceases to exist.
Section 108 - Credits to the Seafarers Rehabilitation and Compensation Special Account
267. This section specifies the amounts that are required to be credited to the Seafarers
Rehabilitation and Compensation Special Account. Generally, amounts of seafarers insurance
levy and any related late payment penalties collected under the Seafarers Safety and
Compensation Levies Collection Act 2016 as well as any amounts collected under the
repealed Seafarers Rehabilitation and Compensation Levy Collection Act 1992 (see Schedule
1 and Part 3 of Schedule 3 to the Amendment Bill) are to be credited to the Seafarers
Rehabilitation and Compensation Special Account. In addition, any amounts paid to the
Commonwealth for any of the purposes of the Special Account (see section 109) may be
credited to that Account.
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Section 109 - Purposes of the Seafarers Rehabilitation and Compensation Special Account
268. Section 109 specifies the purposes of the Seafarers Rehabilitation and Compensation
Special Account, that is, the purposes for which monies standing to the credit of the special
account may be expended. Section 80 of the PGPA Act provides the relevant appropriation
authority.
269. Generally, the Seafarers Rehabilitation and Compensation Special Account will fund
any liabilities incurred by Comcare as a default employer under the Bill and the repealed
Seafarers Act and any associated administrative expenses.
Item 177 - Section 129 (heading)
Item 178 - Subsections 129(1) and (2)
270. These items substitute 'Comcare' for the 'Fund' in section 129. Section 129 will
provide that where Comcare has become the employer of the employee as a result of a default
event under subsection 4(3) and has paid an amount of money in respect of the employee,
Comcare will be subrogated to all of the actual employer's rights and remedies in relation to a
policy of insurance or indemnity or membership of a protection and indemnity association or
an employers' mutual identity association, as the case may be.
Item 179 - Subsections 133(1) and (2)
Item 180 - Subsection 133(4)
Item 181 - Subsection 133(5)
Item 182 - Subsections 134(2) and (4)
Item 183 - Subsection 135(1)
Item 184 - Subsection 135(2)
271. These items substitute 'Comcare' for the 'Authority' in the respective provisions.
Section 133 provides arrangements for any money payable to a person under a legal disability
to be held by Comcare for the benefit of the person. Section 134 deals with the manner in
which compensation monies due to a person, or monies or investments held on behalf of a
person, are to be applied if the person dies. Section 135 provides that an assignment of any
compensation payable by an employer under the Seafarers Act is void as against Comcare if
Comcare is the default employer under subsection 4(3).
Item 185 - Subsection 135(3)
272. Subsection 135(3) provides that, except as provided by the Child Support
(Registration and Collection) Act 1988, the Social Security Act 1991, and the Family Law Act
1975 or by regulations under the Family Law Act 1975, compensation payable under the
Seafarers Act is not subject to attachment. This item updates the references to other
Commonwealth legislation and reflects current practice regarding the treatment of
compensation payments for the purposes of assignment and attachment.
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Item 186 - Subsection 141(1)
273. This section enables Comcare to charge an employer for services provided by
Comcare officers under section 78 for assisting with a reconsideration of a determination.
The legislative rules can prescribe the amount of the fees (which must not amount to
taxation) and provide for the recovery of fees.
Item 187 - Subsection 141(2)
Item 188 - Subsection 141(2)
274. These items substitute 'legislative rules' for 'regulations' in the provision and make a
consequential amendment to the subsection.
Item 189 - After section 141
275. This item provides that a provision of this Act that deals with the variation or
revocation of an instrument does not, by implication, prevent the application of subsection
33(3) of the Acts Interpretation Act 1901 to another instrument under this Act.
Work Health and Safety Act 2011
276. Items 190 to 198 amend the WHS Act to extend that Act to the portion of the
maritime industry that is covered by the Seacare scheme and to designate AMSA as the
work health and safety regulator for the scheme.
277. The OHS(MI) Act came into effect in 1994 and was based on the (repealed)
Occupational Health and Safety Act 1991 which, at the time, was broadly similar to
occupational health and safety laws across all states and territories.
278. Since then the Commonwealth and all states and territories (other than Western
Australia and Victoria) have adopted model work health and safety laws developed in
accordance with the Inter-Governmental Agreement for Regulatory and Operational
Reform in Occupational Health and Safety. The OHS(MI) Act was not similarly amended
or replaced, resulting in significant differences between the OHS(MI) Act and the
principal Commonwealth work health and safety legislation.
279. The Bill now provides for this alignment to occur. The Bill repeals the OHS(MI)
Act (item 1 of Schedule 1) and amends the WHS Act (items 190 to 198) to extend its
application to the maritime sector covered by the Seacare scheme to the exclusion of state
or territory work health and safety laws. This gives effect to recommendation 5.1 of the
Seacare Review. While the Seacare Review envisaged an updated stand-alone WHS Act
for the maritime industry, such industry-specific work health and safety legislation
covering the maritime sector cannot be justified. The duties and requirements in the WHS
Act and Regulations are broad based and are capable of applying to a range of sectors,
industries and workplaces. The maritime sector is not significantly different from other
industries covered by general Commonwealth, state or territory work health and safety
law. Additionally, extending the WHS Act to the maritime sector ensures that future
changes to WHS laws are automatically applied to that sector. AMSA will continue to
exercise work health and safety inspectorate functions in relation to the maritime industry.
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Industry specific Regulations and approved Codes of Practice may be made under the
WHS Act.
280. Transitional arrangements for the move from the OHS(MI) Act to the WHS Act
are provided in Part 6 of Schedule 3.
Item 190 - Section 4 (definition of regulator)
281. This item repeals and substitutes a new definition of 'regulator' in section 4 of the
WHS Act to provide that AMSA will be the work health and safety regulator for the
portion of the maritime sector covered by the new Seacare scheme subject to some minor
exceptions:
AMSA will not be required to approve incident notification forms under
subsection 38(5) and work health and safety training courses under paragraph 72(1)(a) of
the WHS Act, as these are approved by Comcare;
Comcare will have sole responsibility on advising and making recommendations to
the Minister and reporting on the operation and effectiveness of the WHS Act under
paragraph 152(a) of the WHS Act.
282. This preserves continuity with AMSA's current role as the Inspectorate under the
OHS(MI) Act.
Item 191- After subsection 12(8)
283. This item inserts six new subsections 12(8A) to 12(8F) after subsection 12(8) to
describe the 'maritime sector' to which the WHS Act will apply following the repeal of
the OHS(MI) Act.
284. New subsection 12(8A) provides that the WHS Act applies to a vessel if the
Seafarers Act applies to the employment of an employee on a vessel (or would apply
assuming that an employee was employed on a vessel).
285. The prescription that the WHS Act applies if the Seafarers Act would apply
assuming that an employee was employed on the vessel is to ensure that the WHS Act will
apply to vessel which does not have any 'employees' but which does have 'workers'--a
broader term used by the WHS Act.
286. New subsection 12(8A) provides that the WHS Act will apply in relation to the
vessel, any person conducting a business or undertaking on the vessel and workers
carrying out work in any capacity on the vessel. Persons conducting a business or
undertaking on the vessel may include the operator of the vessel, the owner of the vessel
or an employer of an employee on the vessel.
287. A positive duty is placed on officers of these entities to ensure the entity of which
they are an officer complies with is duties and obligations under the WHS Act. The WHS
Act adopts the definition of 'officer of a corporation' in section 9 of the Corporations Act
2001 meaning that the duty will apply to persons who make, or participate in making
decisions that affect the whole or a substantial part of the business of the corporation. This
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requires an assessment of the whole of the corporation's business, not just the business
conducted on the vessel.
288. New subsection 12(8B) provides that new subsection 12(8A) is subject to section
640 of the OPGGS Act which (as amended by item 10) excludes the application of certain
Commonwealth maritime legislation, including the WHS Act, in the offshore area of a
state or territory.
289. New subsection 12(8C) provides that a corresponding WHS law, as defined in
section 4 of the WHS Act, does not apply to a person to the extent that the Commonwealth
WHS Act applies as a result of the addition of subsection (8A).
290. New subsection 12(8D) provides that paragraph 61AA(b) of the Shipping
Registration Act 1981 does not apply to exclude the application of the WHS Act in place
of the OHS(MI) Act to vessels registered on the Australian International Shipping
Register. Paragraph 61AA(b) of the Shipping Registration Act 1981 (as amended by item
13) provides that the new Seafarers Act does not apply in relation to a ship on the
International Register. This provision is to be disregarded for the purposes of subsections
12(8A) and 12(8C) of the WHS Act. This allows for the continued application of the WHS
safeguards in the maritime sector including ships on the International Register, in line with
the existing position under the OHS(MI) Act.
291. New subsection 12(8E) further extends coverage of the WHS Act to prescribed
vessels in the offshore petroleum industry when they are not being regulated as 'facilities'
under the OPGGS Act. For the purpose of new subsections 12(8A) and 12(8C), the WHS
Act is also intended to apply to offshore floating storage or production units and offshore
industry mobile units that are self-propelled or under tow if it meets the other criteria for
coverage as a vessel under the Seafarers Act.
292. New subsection 12(8F) provides that the terms 'employee', 'offshore floating
storage or production unit', 'offshore industry mobile unit' and 'vessel' have the same
respective meanings as in the Seafarers Act.
Item 192 - Section 12A (heading)
Item 193 - Subsection 12A(1)
Item 194 - Subsection 12A(2)
293. These items amend section 12A of the WHS Act as a consequence of the repeal of
the OHS(MI) Act and the amendments in item 191 above which extend the WHS Act to
that part of the maritime sector covered by the Seacare scheme.
Item 195 - After subsection 274(2)
294. This item inserts new subsections 274(2A) and (2B) which provide that the
consultation requirements in subsection 274(2) do not apply to a code of practice that
relates only to the maritime industry and that instead, they must be developed in
consultation with the SRCC.
295. The consultation requirements in section 274 require broad consultation, including
with State and Territory governments. This amendment will allow more focused
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consultation with maritime industry stakeholders, facilitated through the SRCC and the
Seacare Advisory Group (see item 17).
Item 196 - At the end of Part 2 of Schedule 2
296. This item inserts new sections at the end of Part 2 of Schedule 2 to the WHS Act,
which require the SRCC's annual report to include statistics and details about the
administration of the WHS Act (including compliance activity) in the maritime sector
covered by the Seacare scheme.
297. AMSA is required to give the SRCC statistics and other information the SRCC
requires to enable it to meet this reporting obligation.
Item 197 - Clause 3 of Schedule 2
Item 198 - At the end of clause 3 of Schedule 2
298. These items amend clause 3 of Schedule 2 of the WHS Act to exclude from
Comcare's reporting requirements the operation and administration of the WHS Act in the
maritime sector covered by the Seacare scheme under subsections 12(8A) to (8F). The
SRCC will report on the operation and administration of the WHS Act in the maritime
sector covered by the Seacare scheme.
Item 199 - At the end of Schedule 2
299. This item inserts a new Part 5 at the end of Schedule 2 of the WHS Act, dealing
with miscellaneous matters.
New clause 5 - Functions and powers of the Australian Maritime Safety Authority
300. New clause 5 provides that AMSA may perform functions or exercise powers
under the WHS Act (to the extent that it applies to the maritime sector covered by the
Seacare scheme) outside Australia.
New clause 6 - Functions and powers of inspectors appointed by the Australian Maritime
Safety Authority
301. New clause 6 confines the functions and powers of AMSA inspectors appointed
under the WHS Act to the maritime sector covered by the Seacare scheme.
New clause 7 - Australian Maritime Safety Authority and Comcare may share information
302. This clause allows for the sharing of information between Comcare and AMSA to
achieve the objects of the WHS Act and ensure consistent administration of the WHS Act
by both regulators.
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Part 4 - Comcare scheme
Division 1 - Catastrophic injury
Safety, Rehabilitation and Compensation Act 1988
303. Part 4 amends the SRC Act to insert a definition of catastrophic injury and provide
for the payment of weekly compensation for household and attendant care services
obtained as a result of catastrophic injury.
304. The National Injury Insurance Scheme (NIIS) is being developed as a federated model
of separate, state-based no-fault schemes that provide lifetime care and support for people
who have sustained a 'catastrophic injury' caused by four types of accidents: motor vehicle
accidents, workplace accidents, medical accidents and general/other accidents. The NIIS
builds on existing accident compensation schemes - for example, for workplace accidents -
to complement the National Disability Insurance Scheme (NDIS).
305. The amendments in this Part will align the workers' compensation arrangements for
the Comcare scheme with minimum benchmarks proposed for the NIIS by establishing a
tiered approach to the payment of compensation for household and attendant care services,
depending on whether the employee's injury was 'catastrophic' or 'non-catastrophic'.
306. Compensation is payable for household and attendant care services under section 29
of the SRC Act. The new provision will remove the limits on compensation for 'catastrophic
injuries'.
Item 200 - Subsection 4(1)
307. This item inserts a new definition for 'catastrophic injury' as having the meaning
given by the legislative rules. The 'legislative rules' means the rules made under section
122A. It is intended that the definition will be the same as the NIIS benchmark.
Item 201 - Subsection 29 (heading)
308. This item amends the heading to make clear that section 29 applies to household
and attendant care services obtained as a result of non-catastrophic injury.
Item 202 - Subsections 29(1) and (3)
309. This item amends subsections 29(1) and (3) to make clear that compensation in
respect of an injury under section 29 applies as a result of an injury to an employee that is
a non-catastrophic injury.
Item 203 - After section 29
310. Section 29A provides for the payment of weekly compensation for household
services and attendant care services obtained as a result of a catastrophic injury. The
criteria for determining whether household services and attendant care services are
reasonably required and the qualification requirements for provides of attendant care
services remain the same as those under section 29 except that the amount of
compensation payable is such amount as is reasonable in the circumstances. There is also
no limit on the length of time household and attendant care services remain compensable.
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311. Section 29A should be read together with existing subsections 4(1) and 10A of the
SRC Act.
Item 204 - Subsection 60(1) (definition of determination)
312. This item amends section 60(1) of the SRC Act to insert new section 29A in the
definition of 'determination' for the purposes of reconsideration of determinations and
reviews of decisions by the AAT (see Part 6 of the SRC Act).
Item 205 - At the end of Part IX
313. New section 122A enables the Minister to make legislative rules by legislative
instrument prescribing matters required or permitted by the SRC Act to be prescribed by
the rules or rules that are necessary or convenient to be prescribed for carrying out or
giving effect to that Act.
314. Subsection 122A(2) makes clear that the legislative rules may not create an offence
or civil penalty, provide powers of arrest or detention or entry, search or seizure, impose a
tax, set an amount to be appropriated from the Consolidated Revenue Fund under an
appropriation in the Act or directly amend the text of the Act.
Division 2 - Pension Age
Safety, Rehabilitation and Compensation Act 1988
Item 206 - Subsection 4(1)
315. This item provides that 'pension age' has the same meaning as subsection 23(5A),
(5B), (5C) or (5D) of the Social Security Act 1991.
316. Defining 'pension age' by reference to the Social Security Act 1991 allows the
definition to keep pace with any amendments to that Act.
317. References in the Seafarers Act to age 65 years (what once used to be the
maximum pension age) will be replaced by references to 'pension age'.
Item 207 - Subsection 23(1)
Item 208 - Subsections 23(1A) and (1B)
318. These items align the cut-off provisions in section 23 of the SRC Act with the
qualifying age for the age pension as set out in the Social Security Act.
319. Currently, subsection 23(1) of the SRC Act provides that weekly incapacity
payments are not payable to an employee who has reached 65 years - the standard
retirement age when the SRC Act commenced in 1988. Current subsections 23(1A) and
(1B) allow for employees who suffer an injury when they are 63 years or more to receive
incapacity payments for a maximum of 104 weeks (that is, 2 years) while they are
incapacitated.
320. The policy behind ceasing weekly incapacity payments at 65 years, or limiting
payments to 104 weeks if the employee is aged 63 years or more at the date of injury, is
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that once the employee has reached 65 years they can move off weekly incapacity
payments and on to other means of financial support, such as the age pension or
superannuation.
321. However, under the Social Security Act, the age pension age for both men and
women will rise incrementally from 65 years to 67 years between 1 July 2017 and 1 July
2023.
322. These amendments are necessary to ensure that there is no gap for injured
employees aged 65 years or more who would otherwise be unable to receive weekly
incapacity payments due to section 23 of the SRC Act but would also be unable to access
the age pension until he or she reached 'pension age' under the Social Security Act.
Item 209 - Subsection 30(3) (paragraph (a) of the definition of number of days)
Item 210 - Subsection 30(3) (paragraph (b) of the definition of number of days)
323. These items amend the definition of 'number of days' in subsection 30(3) of the
SRC Act as a consequence of the amendments to section 23 of the Act that align the age
cut-off provisions to the qualifying age for the age pension as set out in the Social Security
Act.
Item 211 - Subsection 137(5) (definition of number of days)
324. This item amends the definition of 'number of days' in subsection 137(5) of the
SRC Act as a consequence of the amendments to section 23 of the SRC Act that align the
age cut-off provisions to the qualifying age for the age pension as set out in the Social
Security Act.
Part 5 - Work health and safety
Work Health and Safety Act 2011
325. This Part contains technical amendments to section 12 of the WHS Act to clarify
the application of that Act. Making and enforcing laws about workplace health and safety
are principally the responsibility of the States and Territories. Section 12 limits the
application of the WHS Act to matters connected to the Commonwealth, public authorities
and 'non-Commonwealth Licensees' (referred to as matters with a Commonwealth
connection). The amendments made by item 191 of the Bill will also extend the
application of the WHS Act to matters connected to the maritime sector covered by the
Seacare scheme.
326. Duties of care under the WHS Act extend beyond the traditional
employer/employee relationship so that all persons who conduct a business or undertaking
owe a duty of care to all persons who may be put at risk from the conduct of the business
or undertaking. Duties and obligations under the WHS Act apply to the Commonwealth,
public authorities and non-Commonwealth Licensees (as defined in section 4 of the WHS
Act).
327. The WHS Act also places a positive duty on officers of these entities to exercise
due diligence to ensure the entity of which they are an officer complies with its duties and
obligations under the Act.
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328. Duties are also placed on workers and other persons at the workplace (e.g. visitors)
to exercise reasonable care for their own health and safety and the safety of other persons.
These duties apply to the extent that a worker is taken to be carrying out work in any
capacity for a business or undertaking conducted by the Commonwealth, a public
authority or non-Commonwealth Licensee, and persons at workplaces where such work is
being carried out.
329. Further duties apply to persons conducting businesses or undertakings involved in
specific activities that may have a significant effect on work health and safety at
workplaces (sections 20-26 of the WHS Act). These activities include the management or
control of workplaces, fixtures, fittings and plant, as well as the design, manufacture,
importation, supply or installation of plant, substances and structures used for work.
Collectively these duty holders are sometimes referred to as 'upstream duty holders'
because of the potential for their acts and omissions to give rise to risks that flow through
to employers, workers or members of the public who encounter their plant, substances,
buildings or structures in workplaces downstream.
330. Technical amendments made by this Part clarify that the WHS Act applies to these
'upstream duty holders' where the activity gives rise to potential risk to workers or
workplaces to which the WHS Act applies. The WHS Act extends beyond the
Commonwealth, public authorities and non-Commonwealth licensees to impose duties of
care on all businesses and undertakings that have the capacity to influence safety of
workers and workplaces prescribed by section 12.
331. The WHS Act will continue to apply to the exclusion of state and territory laws in
relation to the Commonwealth, public authorities and non-Commonwealth licensees that
have opted in to national work health and safety and workers compensation coverage
under the Comcare scheme. However, persons conducting a business or undertaking who
design, manufacture, import or supply plant, substances or structures to (or in) multiple
jurisdictions--that is more than one state or territory, or workplaces to which
Commonwealth and state or territory laws apply, could be subject to more than one set of
WHS laws. Duty holders will not be able to be prosecuted more than once for an act or
omission (see subsections 12(10)-(13)).
Illustrative example
Workers at the Department of Utopia are required to poke fingers and other objects into
the shredder to clear paper fragments because of a lack of appropriate guarding
preventing large volumes of paper being fed into the equipment. The equipment was
purchased from Supplies 'R Us and is widely used by workplaces.
Supplies 'R Us has a duty under section 25 of the WHS Act to ensure so far as is
reasonably practicable that the equipment is without risks to persons. The equipment is
sold in stores in New South Wales and Queensland, so corresponding work health and
safety laws also apply.
Notices may be issued under the WHS Act to Supplies 'R Us to fit appropriate guarding
to the shredders ensuring the issue is addressed in relation to workplaces more broadly,
and is not limited to the Department of Utopia.
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Item 212 - Paragraph 12(1)(a) and (b)
332. This item repeals and replaces paragraphs 12(1)(a) and (b) of the WHS Act. In
substance, these amendments remove references to officers of the Commonwealth and a
public authority. These references are unnecessary because an officer of the
Commonwealth or a public authority will have a duty under the WHS Act by virtue of
being an officer of an entity which has duties under the WHS Act.
Item 213 - Paragraph 12(1)(c)
Item 214 - Paragraph 12(1)(c)
Item 215 - Paragraph 12(1)(d)
Item 216 - Paragraph 12(1)(d)
333. These items amend paragraphs 12(1)(c) and (d) of the WHS Act to replace
references to 'person' with 'worker' as this is the term used in the duties.
Item 217 - Paragraph 12(1)(e)
Item 218 - Paragraph 12(1)(e)
Item 219 - Paragraph 12(1)(f)
Item 220 - Paragraph 12(1)(f)
334. These items amend paragraphs 12(1)(e) and (f) of the WHS Act to replace the
references to 'place' with 'workplace' as this is the term used in the duties.
Item 221 - Subsection 12(3)
335. This item amends subsection 12(3) of the WHS Act to make it clear that State and
Territory work health and safety laws are only excluded where there is a direct application
to the Commonwealth, a public authority or a non-Commonwealth Licensee. It is intended
that State and Territory work health and safety laws would continue to apply to non-
Commonwealth business and undertakings and other persons to the extent that they would
otherwise operate in a situation involving a person conducting a business or undertaking,
worker or workplace with a Commonwealth connection. For example, if a non-
Commonwealth worker visits a Commonwealth workplace as part of the workers' non-
Commonwealth work, the Commonwealth has a duty to the worker under subsection 19(2)
of the WHS Act and the worker has a duty under the applicable State or Territory work
health and safety law to take reasonable care for his or her own safety.
Item 222 - Paragraphs 12(4)(b)
Item 223 - Paragraph 12(4)(b)
336. These items amend paragraph 12(4)(b) of the WHS Act to replace references to
'person' with 'worker' as this is the term used in the duties.
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Item 224 - Paragraph 12(4)(c)
Item 225 - Paragraph 12(4)(c)
337. These items amend paragraph 12(4)(c) of the WHS Act to replace the references to
'place' with 'workplace' as this is the term used in the duties.
Item 226 - Subsections 12(5) and (9)
338. This item amends subsections 12(5) and (9) of the WHS Act to make it clear that
State WHS laws are only excluded where there is a direct application to the
Commonwealth, a public authority or a non-Commonwealth Licensee. It is intended that
State and Territory work health and safety laws would continue to apply to non-
Commonwealth business and undertakings and other persons to the extent that they would
otherwise operate in a situation involving a person conducting a business or undertaking,
worker or workplace with a Commonwealth connection. For example, if a non-
Commonwealth worker visits a Commonwealth workplace as part of the workers' non-
Commonwealth work, the Commonwealth has a duty to the worker under subsection 19(2)
of the WHS Act and the worker has a duty under the applicable State or Territory work
health and safety law to take reasonable care for his or her own safety.
Item 227 - Subsection 74(1)
Item 228 - subsection 74(2)
339. These items repeal subsection 74(2) and remove the number reference to (1).
Subsection 74(2) requires a PCBU to provide a copy of an up-to-date list of HSR's and
their deputies to Comcare. Repealing 74(2) removes the burden on employers of providing
this list to Comcare but does not alter the primary aspect of section 74(1) which requires
this list to be displayed in a prominent place in the workplace. This amendment does not
reduce health and safety overall as inspectors can view lists when inspecting workplaces
and may request a copy under section 155 of the WHS Act.
Item 229 - Section 93
340. A HSR may issue a provisional improvement notice (PIN) under section 90 if he or
she reasonably believes that a person is contravening the WHS Act. A PIN is a written
notice requiring the contravention to be remedied or a likely contravention to be
prevented.
341. Section 93 provides that a PIN may include directions which outline the measures
to be taken to remedy or prevent the contravention. Although directions may specify a
particular method to remedy or prevent a contravention, there may be other methods
available which would achieve the same outcome. While the language in section 93, such
as 'directions' and 'the measures to be taken', suggests that compliance with a direction is
compulsory, compliance with a direction is intended to be optional.
342. These items repeal and replace section 93 to clarify that a PIN may include
recommendations (rather than directions) about measures that may be taken by a person to
prevent or remedy a contravention.
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Amendments - Schedule 2
343. A recommendation under new section 93 is intended to provide practical guidance
to assist a person to prevent or remedy a contravention. It may recommend a measure, or a
choice of measures, that could be taken by a person to comply with the WHS Act. It may
also refer to an approved code of practice made under the WHS Act.
344. A failure to comply with a recommendation in a PIN is not intended to be an
offence under section 99.
Item 230 - At the end of section 247
345. The amendment clarifies that neither a Judge nor a Head of Mission is, in that
capacity, an officer for the purposes of the WHS Act.
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SCHEDULE 3 - APPLICATION AND TRANSITIONAL PROVISIONS
346. This schedule contains transitional provisions arising from the repeals and
amendments effected by Schedules 1 and 2.
Part 1 - Introduction
Item 1
347. This item contains definitions for the purposes of Schedule 3. It defines the terms
'transitional rules' and 'transition time'.
348. 'Transitional rules' are the rules made under item 64 of Schedule 3.
349. The 'transition time' will be the day on which the main provisions of the new
Seafarers Act commence, that is, on 1 July 2017.
Part 2 - Catastrophic injuries to seafarers
Item 2 - Application - catastrophic injury
350. This item makes clear that the amendments to sections 43 and the insertion of new
section 43A of the Seafarers Act made by Part 1 of Schedule 2 apply to compensation
payable in respect of a week beginning after the commencement of the first legislative
rules made for the purposes of the definition of 'catastrophic injury' in section 3.
Part 3 - Implementation of the amendments to the Maritime Labour Convention
relating to insurance obligations of employers of seafarers
Item 3 - Application - compulsory insurance
351. This item makes clear that amended sections 93(5) and (6) (which deal with
compulsory insurance obligations) only apply in relation to an application made by an
employer after the commencement of this item (that is, the 28th day after this Bill receives
the Royal Assent and 1 January 2017, whichever is later).
Part 4 - Seacare scheme
Item 4 - Application - coverage of employees etc
352. This item provides that despite the amendments to the Seafarers Act in relation to
an employee's eligibility and compensation entitlements made by certain items in
Schedule 2, the Seafarers Act as it was in operation prior to the transition time continues to
apply in relation to injuries suffered pre-transition time as if those amendments had not
been made (the 'preserved Seafarers Act'). The preserved Seafarers Act will also continue
to apply in relation to injuries suffered at or after the transition time if an employee suffers
an injury while he or she was travelling between his or her place of work or place of
residence and any other place for the purposes of obtaining medical treatment or a medical
certificate in relation to an initial injury that was suffered pre-transition time.
353. The preserved Seafarers Act will operate as it was in force in relation to eligibility
and compensation payments immediately before the transition time and is intended to
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apply the general principle that injuries are regulated by the law that was in force at the
time of the injury.
354. The exceptions to this are the amendments made by Part 1 of Schedule 2 which
provide for uncapped compensation for household and attendant care services for an
employee who suffers a catastrophic injury and the amendment in Part 3 of Schedule 2
which ensures that persons receiving compensation payments can continue to receive
those payments until 'pension age', as defined. These amendments have separate
commencement provisions set out in Items 2 and 9 of this Schedule, respectively.
Item 5 - Transitional - exemption of employment
355. Section 20A of the Seafarers Act provides that the Seacare Authority may exempt
the employment of certain employees. If an exemption is in force in respect of a ship, the
Seafarers Act does not apply in relation to those employees to whom the exemption
applies, so long as any conditions of the exemption are complied with (subsection
20A(3)). Item 5 provides for the transition of exemption instruments in force under
subsection 20A(1) of the Seafarers Act as 'deemed exemption instruments' under new
subsection 25M(1) of the Seafarers Act in the same terms as the old exemption instrument
after the commencement of item 5 on 1 July 2017.
356. Paragraphs 5(2)(b) and (c) provide that a reference in the deemed exemption
instrument to the Levy Act and Levy Collection Act applies as if it were a reference to the
Seafarers Safety and Compensation Levy Act 2016 and Seafarers Safety and
Compensation Levies Collection Act 2016 respectively.
357. Subclause 5(3) provides that new subsection 25M(14) (requiring the SRCC to
consult before making an instrument of exemption) and paragraph 25M(16) (requiring the
SRCC to give a copy of the instrument of exemption to the owner or operator of a vessel,
the employer of the relevant employees and each person who made a submission under
subsection 25M(14)) do not apply to the deemed exemption instrument.
Item 6 - Application - funeral expenses
358. This item makes clear that the amendment of subsection 30(2) made by item 88
applies in relation to a death that occurs after the commencement of this item.
Item 7 - Transitional - indexation
359. This item provides that section 23 applies to an amount specified in subsection
30(2) as if the reference in the definition of 'relevant year' in subsection 23(1) to 1 July
1992 were a reference to 1 July 2018. This will ensure that indexation on the amount
specified in subsection 30(2) occurs at the end of the first financial year following the
commencement of the provision on 1 July 2017.
Item 8 - Application - compensation for injuries resulting in incapacity.
360. This item provides that the amendment of section 31 of the Seafarers Act (which
provides for compensation for injuries resulting in incapacity) made by the Bill only
applies to payments of compensation after the transition time.
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Item 9 - Application - pension age
361. This item provides that the amendments to section 38 of the Seafarers Act (related
to the definition of 'pension age') made by the Bill only apply to payments of
compensation after the transition time. The item also allows the number of weeks of
compensation payments to be increased beyond 52 weeks to ensure that an employee who
has already reached 64 years and who was injured before the transition time continues to
receive payments to bridge any gap after the 53 weeks are exhausted before the relevant
pension age (subject to ongoing eligibility determined in accordance with the Seafarers
Act).
Item 10 - Application - superannuation scheme
362. This item ensures that the amendment made by item 59 of Schedule 2 of the Bill
(which substitutes a new definition for 'superannuation scheme') only apply to payments
of compensation after the transition time.
Item 11 - Application - reconsideration of decisions
363. This item ensures that the amendments to section 78 of the Seafarers Act (which
deals with an employer arranging with Comcare for a Comcare officer to assist the
employer in reconsidering a determination under subsection 78(5)) made by the Bill only
apply in relation to a request made after the transition time.
Item 12 - Application - costs of proceedings before the Administrative Appeals
Tribunal
364. This item ensures that the amendment of section 91 of the Seafarers Act (which
provides a power for the AAT to tax costs under section 69A of the AAT Act) made by the
Bill only apply in relation to proceedings instituted after the transition time.
Part 5 - Winding-up of old levy scheme
Item 13 - Application--repeal of old Levy Act
Item 14 - Application--repeal of old Levy Collection Act
365. These items provide that despite the repeals of the Seafarers Rehabilitation and
Compensation Levy Act 1992 and the Seafarers Rehabilitation and Compensation Levy
Collection Act 1992 those Acts continue to apply in relation to matters before the
transition time.
Part 6 - Transition from old occupational health and safety scheme
366. This Part preserves the operation of the OHS(MI) Act in relation to breaches of
that Act that occurred before the transition time.
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Division 1 - Introduction
Item 15 - Definitions
367. This item contains definitions of terms used in Part 6 of Schedule 3 of the Bill. For
the purpose of the Part the following terms are defined: Australian Maritime Safety
Authority, notifiable incident, Occupational Health and Safety (Maritime Industry) Act
1993, residual operation of the Occupational Health and Safety (Maritime Industry) Act
1993, plant, structure, substance, supply and Work Health and Safety Act 2011.
Division 2 - Application of old occupational health and safety scheme
Item 16 - Application of old occupational health and safety scheme to certain breaches
etc.
368. This item preserves the operation of the repealed OHS(MI) Act in relation to
breaches (and alleged breaches) of that Act that occurred before the transition time.
However, the repealed OHS(MI) Act will not apply to breaches that continue after the
transition time as these will be subject to the provisions of the WHS Act.
Division 3 - Application of duties imposed under the Work Health and Safety Act 2011
369. This Division provides for the phasing in of the 'upstream' duties imposed by the
WHS Act where an activity may have started prior to the extension of the WHS Act to the
maritime sector and the duty did not previously apply to the activity.
370. Because many of the duty holders under these provisions will operate in relation to
workplaces in multiple work health and safety jurisdictions (for example, a business might
manufacture plant used in workplaces throughout multiple states and on vessels under the
Seacare scheme), it is likely that many duty holders will already have been complying
with either the Commonwealth WHS Act or a state or territory WHS Act.
371. For this reason, the transitional provisions set out in items 17 to 21 for these duties
will not apply to a person who was already subject to that duty, either under the
Commonwealth WHS Act or a state or territory WHS Act.
Item 17 - Duties of designers
372. This item provides that designer duties under section 22 of the WHS Act (in so far
as that Act applies to the maritime sector)--other than the duties imposed on the designer
under paragraph 22(4)(b) and subsection 22(5)--do not apply in relation to any plant,
substance or structure if the design work commenced before the transition time and is
completed within two years of the transition time.
373. Paragraph 22(4)(b) and subsection 22(5) of the WHS Act require a designer to
provide information to specified persons about the results of any calculations, analysis,
testing or examination that may be relevant to determining whether any plant, substance or
structure is designed to be without work health and safety risks.
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Item 18 - Duties of manufacturers
374. This item provides that manufacturer duties under section 23 of the WHS Act (in
so far as that Act applies to the maritime sector)--other than the duties imposed on the
manufacturer under paragraph 23(4)(b) and subsection 23(5)--do not apply in relation to
any plant, substance or structure if the manufacturer commenced work before the
transition time and is completed within one year of the transition time. The duties imposed
on a manufacturer under sections 15 and 16 of the repealed OHS(MI) Act will apply to
and in relation to any plant or substance if the manufacturer started any process associated
with the manufacture of the plant or substance before the transition time. The repealed
OHS(MI) Act will apply to any breach of these duties.
375. Paragraph 23(4)(b) and subsection 23(5) of the WHS Act require a manufacturer to
provide information to specified persons about the results of any calculations, analysis,
testing or examination that may be relevant to determining whether any plant, substance or
structure is manufactured to be without work health and safety risks.
Item 19 - Duties of importers
376. This item provides that importer duties under section 24 of the WHS Act (in so far
as that Act applies to the maritime sector)--other than the duties imposed on the importer
under paragraph 24(4)(b) and subsection 24(5)--do not apply in relation to any plant,
substance or structure if the importer commenced the importation before the transition
time and the importation within one year of the transition time. The duties imposed on an
importer who is taken to be a manufacturer under sections 15 and 16 of the repealed
OHS(MI) Act will apply to and in relation to any plant or substance if the importer started
any steps constituting the importation of the plant or substance before the transition time.
The repealed OHS(MI) Act will apply to any breach of these duties.
377. Paragraph 24(4)(b) and subsection 24(5) of the WHS Act require an importer to
provide information to specified persons about the results of any calculations, analysis,
testing or examination that may be relevant to determining whether any plant, substance or
structure that is imported is without work health and safety risks.
Item 20 - Duties of suppliers
378. This item provides that supplier duties under section 25 of the WHS Act (in so far
as that Act applies to the maritime sector)--other than the duties imposed on the supplier
under paragraph 25(4)(b) and subsection 25(5)--do not apply in relation to any plant,
substance or structure if the supplier commenced any process associated with the supply
before the transition time and the supply is completed within one year of the transition
time. The duties imposed on a supplier (or a person taken to be a supplier) under section
19 of the repealed OHS(MI) Act will apply to and in relation to any plant or substance if
the supplier started any process associated with the supply of the plant or substance before
the transition time. The repealed OHS(MI) Act will apply to any breach of these duties.
379. Paragraph 25(4)(b) and subsection 25(5) of the WHS Act require a supplier to
provide information to specified persons about the results of any calculations, analysis,
testing or examination that may be relevant to determining whether any plant, substance or
structure that is supplied is without work health and safety risks.
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Item 21 - Duties of persons who install, construct or commission plant or structures
380. This item provides that the installer duties under section 26 of the WHS Act (in so
far as that Act applies to the maritime sector) do not apply in relation to any plant,
substance or structure if the installer commenced any process associated with the
installation, construction or commissioning of the plant or structure before the transition
time and the installation, construction or commissioning within two years of the transition
time. The duties imposed on an installer under section 22 of the repealed OHS(MI) Act
will apply to and in relation to any plant or substance if the installer started any process
associated with the installation, construction or commissioning of the plant or substance
before the transition time. The repealed OHS(MI) Act will apply to any breach of these
duties.
Division 4 - Notifiable incidents etc.
Item 22 - Notifiable incidents etc.
381. This item provides that if a person conducting a business or undertaking becomes
aware of a notifiable incident after the transition time, the WHS Act (in so far as that Act
applies to the maritime sector) applies in relation to that notifiable incident even if the
incident occurred before the transition time.
Item 23 - Accidents and dangerous occurrences
382. This item preserves the operation of section 108 of the OHS(MI) Act (and
associated regulations) in relation to any records required to be maintained about an
accident or dangerous occurrence before the transition time.
Division 5 - Work groups, health and safety representatives and committees
Item 24 - Designated work groups
383. This item provides that a designated work group established under Division 1 of
Part 3 of the repealed OHS(MI) Act and in operation immediately before the transition
time is taken to have been determined as a work group under the WHS Act.
Item 25 - Health and safety representatives etc.
384. This item provides that health and safety representatives and deputy health and
safety representatives selected under the repealed OHS(MI) Act and who hold office
immediately before the transition time are taken to hold the corresponding office under the
WHS Act for a term of three years beginning on the day of their selection under the
repealed OHS(MI) Act.
Item 26 - Health and safety committees
385. This item provides that a health and safety committee established under section 73
of the repealed OHS(MI) Act and in operation immediately before the transition time is
taken to be a health and safety committee under the WHS Act. Sub-item 26(2) sets out the
constitution of a transitional health and safety committee and sub-item 26(4) clarifies that
the constitution of a transitional committee can be changed in accordance with section 76
of the WHS Act.
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Item 27 - Processes to establish work groups etc.
386. This item enables a process or proceeding to establish or vary a designated work
group, select a health and safety representative or deputy health and safety representative
or to establish a health and safety committee that was commenced under the repealed
OHS(MI) Act before the transition time to be completed under that Act provided that this
is done within three months after the transition time.
Item 28 - Training
387. This item provides that a person who has completed a course of training accredited
under section 47 of the repealed OHS(MI) Act is taken to have completed any training
required under subsection 85(6) or 90(4) of the WHS Act (in so far as that Act applies to
the maritime sector) for a period of 12 months only.
Item 29 - Provisional improvement notices
388. This item preserves the operation of the repealed OHS(MI) Act in relation to a
provisional improvement notice in effect under section 58 of that Act at the transition
time. Sub-item 29(2) clarifies that a disputed transitional improvement notice is not
reviewable under the WHS Act.
Item 30 - Disqualification
389. This item ensures that a person who, immediately before the transition time, is
disqualified under section 72 of the repealed OHS(MI) Act from being a health and safety
representative continues to be disqualified under the WHS Act for the balance of the
period of the initial disqualification.
390. Sub-item 30(3) provides that a person's conduct as a health and safety
representative under the repealed OHS(MI) Act is relevant to the determination of an
application for disqualification under section 65 of the WHS Act.
Division 6 - AMSA and inspectors
Item 31 - Appointment
391. This item preserves the appointment of AMSA staff members as inspectors under
the repealed OHS(MI) Act as inspectors under the WHS Act and preserves the operation
of identity cards issued for the purposes of the repealed OHS(MI) Act.
Item 32 - Use of WHS functions and powers to enforce the Occupational Health and
Safety (Maritime Industry) Act 1993
392. This item provides that, after the transition time, an AMSA appointed inspector can
perform WHS Act functions and exercise WHS Act powers in relation to matters arising in
connection with the residual operation of the repealed OHS(MI) Act and that the WHS Act
applies in relation to the performance or exercise of such a function or power. For
example, an inspector may be able to enter premises for the purpose of investigating a
matter after commencement of the WHS Act in relation to actions or failures that occurred
before the transition time, whether or not the investigation commenced prior to the
transition time. Action taken or information acquired through the exercise of powers and
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functions under the WHS Act may be used for the purposes of enforcing relevant
provisions of the OHS(MI) Act.
Item 33 - WHS inspectors may exercise functions and powers under the Occupational
Health and Safety (Maritime Industry) Act 1993
393. This item provides that an AMSA appointed inspector may exercise the functions
and powers of an investigator under the repealed OHS(MI) Act in connection with the
residual operation of that Act.
Item 34 - AMSA may use powers of investigation under the Work Health and Safety Act
2011 for the Occupational Health and Safety (Maritime Industry) Act 1993
394. This item provides that AMSA may, after the transition time, exercise the
information gathering powers under section 155 of the WHS Act in relation to anything
arising in connection with the residual operation of the repealed OHS(MI) Act and that the
WHS Act applies in relation to the exercise of that power. Section 155 sets out the powers
of the regulator to obtain information from a person in relation to a possible contravention
of the WHS Act.
395. Information in relation to actions and failures that occurred before the transition
time can be used when investigating matters after the transition time whether or not the
investigation commenced before the transition time. Action taken or information acquired
through the exercise of functions under the WHS Act may be used for the purposes of the
OHS(MI) Act. This would, for example, permit information acquired on AMSA's request
under section 155 to be used as evidence in a prosecution for breach of the OHS(MI) Act.
Division 7 - Enforcement measures
Item 35 - Prohibition notices
396. This item preserves the operation of the repealed OHS(MI) Act in relation to a
prohibition notice which is in effect under section 93 of that Act immediately before the
transition time.
Item 36 - Improvement notices
397. This item preserves the operation of the repealed OHS(MI) Act in relation to an
improvement notice which is in effect under section 98 of that Act immediately before the
transition time.
Division 8 - Other matters
Item 37 - Exemptions
398. This item preserves the operation of certain exemptions under the OHS(MI) Act
under the WHS Act.
399. Sub-item 37(1) enables the transitional rules to identify those exemptions under the
OHS(MI) Act which are to be preserved under the WHS Act.
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400. Sub-item 37(2) enables the transitional rules to modify the application of the WHS
Act in relation to preserved exemptions.
Item 38 - Codes of practice
401. This item preserves the operation of certain codes of practice made under section
109 the OHS(MI) Act as if they were approved under section 274 of the WHS Act for a
period of 2 years.
402. Sub-item 38(1) enables the transitional rules to identify those codes of practice
which are to be preserved under the WHS Act.
403. Sub-item 38(4) clarifies that a preserved code of practice may be varied or revoked
under section 274 of the WHS Act.
Item 39 - Offshore petroleum and greenhouse gas storage
404. This item provides that the definition of Commonwealth maritime legislation in
subsection 640(3) of the OPGGS Act is taken to include a reference to the repealed
OHS(MI) Act and any subordinate legislation to that Act.
405. That provision will be amended to replace the reference to the OHS(MI) Act with a
reference to the WHS Act so far as that Act applies because of subsection 12(8A) of that
Act.
Part 7 - Abolition of the Seafarers Safety, Rehabilitation and Compensation
Authority
Item 40 - Designated provision
406. The effect of Part 7 as a whole is to transfer the existing powers and obligations of
the Seacare Authority under the Seafarers Act to the SRCC or Comcare after the abolition
of the Seacare Authority.
407. Item 40 provides that each of the provisions of the Seafarers Act listed in the item
is a 'designated provision' for the purposes of Part 7 of Schedule 3. The designated
provisions relate to certain things that were done by, or in relation to, the Seacare
Authority under the Seafarers Act before the transition time.
Item 41 - Transitional--certain acts of the Seafarers Safety, Rehabilitation and
Compensation Authority to be attributed to the Safety, Rehabilitation and
Compensation Commission etc.
408. This item provides that anything done by, or in relation to, the Seacare Authority
before the transition time otherwise than under a designated provision or in connection
with the Seacare Authority's capacity as an employer under repealed subsection 4(2) or (3)
of the Act has effect after the transition time as if it had been done by, or in relation to, the
SRCC.
409. The provisions which this item does not apply to relate to functions which will be
transferred to Comcare rather than the SRCC.
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Item 42 - Transitional--certain acts of the Seafarers Safety, Rehabilitation and
Compensation Authority to be attributed to Comcare etc.
410. This item provides that anything done by, or in relation to, the Seacare Authority
before the transition time under a designated provision will have effect after the transition
time as if it had been done by, or in relation to, Comcare.
Item 43 - Substitution of the Safety, Rehabilitation and Compensation Commission as a
party to certain pending proceedings
411. This item provide that in any proceedings to which the Seacare Authority was a
party in any court or tribunal immediately before the transition time, the SRCC is
substituted for the Seacare Authority, from the transition time, as a party to the
proceedings.
412. This will not apply in relation to the functions of the Seacare Authority which are
being transferred to Comcare, for those proceedings, Comcare will be substituted instead
(see item 44).
413. This item ensures that any existing litigation is not affected by the abolition of the
Seacare Authority.
Item 44 - Substitution of Comcare as a party to certain pending proceedings
414. This item provides that in any proceedings to which the Seacare Authority was a
party in any court or tribunal immediately before the transition time, and which relate to
the functions being transferred to Comcare, Comcare is substituted for the Seacare
Authority, from the transition time, as a party to the proceedings.
415. This item ensures that any existing litigation is not affected by the abolition of the
Seacare Authority.
Item 45 - Transitional--transfer of records to the Safety, Rehabilitation and
Compensation Commission
Item 46 - Transitional--transfer of records to Comcare
416. These items provides for any records or documents that were in possession of the
Seacare Authority immediately before the transition time to be transferred to the SRCC or
Comcare (depending on which function they relate to) from the transition time.
Item 47 - Transitional--transfer of Ombudsman investigations to the Safety,
Rehabilitation and Compensation Commission
Item 48 - Transitional--transfer of Ombudsman investigations to Comcare
417. These items ensure that matters before the Ombudsman relating to actions taken by
the Seacare Authority that have not been finalised at the transition time are either
transferred to the SRCC or to Comcare (depending on which function they relate to).
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Item 49 - References in certain instruments to the Seafarers Safety, Rehabilitation and
Compensation Authority
418. This item provides for references to the Seacare Authority in certain instruments to
be taken as references to the SRCC or Comcare (depending on which function the
instrument relate to) at the transition time to ensure that those instruments continue to
operate as intended after the transition.
Item 50 - Transitional--Transfer of money or investments to Comcare
419. This item provides that any money or investments held by the Seacare Authority
for the benefit of a person are to be transferred to Comcare, to be held for the benefit of
that person.
Item 51 - Transitional - information gathering
420. This item provides for information gathering notices issued by the Seacare
Authority before the transition time to continue to have effect after the transition time as if
the notice had been issued by Comcare.
Item 52 - Final annual report of the Seafarers Safety, Rehabilitation and Compensation
Authority
Item 53 - Annual report--occupational health and safety
421. This item provides that the final annual reports of the Seacare Authority, as
required by the PGPA Act and OHS(MI) Act, will be prepared by the Chairperson of the
SRCC.
Part 8 - Coverage of employees by the Seacare scheme
422. This Part will enable operators and owners of vessels which are covered by the
Seacare scheme at the time of Royal Assent to seek a 'transitional declaration', so that
they will remain covered by the scheme due to new section 25D of the Seafarers Act. This
will ensure that any vessels which are currently covered by the Seacare scheme that would
not meet the new definition of 'prescribed vessel' can continue to be covered by the
scheme if they choose to be. Vessels which do meet the definition of 'prescribed vessel'
will be able to opt-in under the provisions in Part 1A of the Seafarers Act.
423. Vessel operators and owners will have from Royal Assent until six months after
the transition time to seek a transitional declaration. Declarations will be granted by the
SRCC. Declarations will remain in force for three years at a time, and can be renewed by
application to the SRCC.
Item 54 - Definitions
424. This item provides definitions for Part 6. These definitions are consistent with
those in the Seafarers Act.
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Item 55 - Application for transitional declaration
425. This item enables the owner or operator of a vessel to apply to the SRCC for a
transitional declaration in relation to the vessel.
426. An application (other than to renew an existing transitional declaration) can only
be made in the period between when the Bill receives Royal Assent and 6 months after the
transition time.
427. Sub-items 55(2), (3) and (4) set out various requirements in relation to an
application.
428. Sub-item 55(4) enables the application form to require the applicant to state they
have taken reasonable steps to inform affected employees and their representatives of the
application. Because an application for a transitional declaration could affect the workers'
compensation entitlements and work health and safety protections of employees on the
vessel, it is important these employees are made aware of the application.
429. The application form will not require the applicant to directly notify every affected
employee--this would be excessively burdensome. The applicant must take reasonable
steps to inform their employees, for example by posting notices around the affected vessel
and/or including a notice about the application in a staff newsletter. If the transitional
declaration is granted, it will also be published on the SRCC's website (see item 58).
430. Subitems 55(6), (7) and (8) provide for renewal applications. Renewal applications
must be made more than 28 days before the current transitional declaration would expire
(unless the SRCC allow a late application to be made). If a renewal application is made,
the current transitional declaration remains in force until a decision is made in relation to
the renewal application (unless it is separately suspended or revoked under item 59).
Item 56 - Further information
431. This item empowers the SRCC to seek further information in relation to an
application for a transitional declaration. If the applicant does not provide the request
information, the SRCC may refuse to process the application until the information is
provided.
Item 57 - Withdrawal of application
432. This item provides that an applicant may withdraw an application for a transitional
declaration and that this does not prevent the applicant from making a fresh application
(subject to the time limits in item 55). If an application is withdrawn, the SRCC must
refund any fee paid in relation to the application.
Item 58 - Transitional declaration
433. This item provides that the SRCC must consider an application for a transitional
declaration and then either make or refuse to make a transitional declaration.
434. Sub-items 58(4) and (5) set out eligibility criteria for a transitional declaration. The
SRCC can only grant a transitional declaration if it is satisfied that during the 28 day
period leading up to Royal Assent:
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The Seafarers Act applied to employees on the vessel; and
An employer of employees on the vessel was maintaining a policy of insurance, or
membership of a protection and indemnity association or an employers' mutual
indemnity association (as required by section 93 of the Seafarers Act).
435. These eligibility criteria will ensure that transitional declarations are limited to
vessels which were both under the Seacare scheme and complying with the Seafarers Act
at the time of Royal Assent. The SRCC will be able to look at whether the levy was being
paid in relation to the vessel to assist it in determining whether the Seafarers Act applied to
the vessel.
436. Sub-items 58(7), (8), (9) and (10) deal with the duration of transitional
declarations. Transitional declarations will remain in force for three years.
437. Sub-item 58(11) provides that the SRCC must make a decision within 28 days of
either receiving the application or, where the SRCC has requested further information
under section 56, receiving that information. If the SRCC does not make a decision within
that time frame, it will be deemed to have made a declaration in accordance with the
application.
438. Sub-item 58(12) provides that the SRCC is required to give a copy of a transitional
declaration to the owner and operator of the vessel to which the declaration relates and
publish the declaration on its website.
439. Sub-item 58(13) provides that if the SRCC refuses to make a declaration, it must
give written notice to the applicant (a refusal is reviewable by the AAT, see item 60 of this
Schedule).
Item 59 - Suspension or revocation of transitional declaration
440. This item empowers the SRCC to suspend or revoke a transitional declaration
either on its own initiative or on application by the owner or operator of the vessel, or the
employer of the employees covered by the declaration. Sub-item (5) provides that an
application must be in writing and in a form approved, in writing, by the SRCC.
441. Sub-items 59(6) and (7) set out the requirements that may be provided for in the
approved form. Sub-item (7) enables the application form to require the applicant to state
they have taken reasonable steps to inform affected employees and their representatives of
the application. Because the suspension or revocation of a transitional declaration would
affect the workers' compensation entitlements and work health and safety protections of
employees on the vessel, it is important employees are made aware of the application.
442. The application form will not require the applicant to directly notify every affected
employee--that would be excessively burdensome. The applicant must take reasonable
steps to inform their employees, for example by posting notices around the affected vessel
and/or including a notice about the application in a staff newsletter.
443. Sub-item 59(8) sets out the matters the SRCC must have regard to in deciding
whether to suspend or revoke a transitional declaration and includes the matters (if any)
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Application and transitional provisions - Schedule 3
prescribed by the transitional rules and such other matters (if any) as the SRCC considers
relevant.
444. In addition, sub-item 59(9) provides that before the SRCC can decide to suspend or
revoke a transitional declaration, it must post a notice of the proposed suspension or
revocation on its website, inviting submissions. If a person makes a submission within
seven days of the notice being posted, the SRCC must consider this submission. This
ensures procedural fairness to affected parties.
445. The SRCC must notify the owner and operator, and any person who made a
submission, of a decision to suspend or revoke a transitional declaration and publish the
instrument of suspension or revocation on its website.
446. Sub-item 59(12) provides that a transitional declaration has no effect while it is
suspended and sub-item 59(13) provides that if the SRCC decides not to suspend or
revoke a transitional declaration upon an application made under paragraph (4)(b), the
SRCC must give written notice of the decision to the applicant (a refusal is reviewable by
the AAT, see item 60).
Item 60 - Review of decisions
447. This item provides that applications may be made to the AAT for review of the
following decisions relating to transitional declarations:
whether a transitional declaration should be made; and
whether a transitional declaration should be suspended or revoked.
Part 9 - Comcare scheme
Division 1 - Catastrophic injury
Item 61 - Application - catastrophic injury
448. This item provides that the amendments of sections 29 and 29A of the SRC Act
made by the Bill only apply in respect of a week beginning after the commencement of the
first legislative rules made for the purposes of the definition of 'catastrophic injury' in
subsection 4(1) of that Act.
Division 2 - Pension age
Item 62 - Application - pension age
449. This item provides that the amendments to section 23 of the SRC Act made by the
Bill only apply in respect of a week beginning after the commencement of this item. The
item also provides that the amendment of section 137 of the SRC Act made by the Bill
applies in relation to a determination made by the relevant authority after the
commencement of this item. The item also allows the number of weeks of compensation
payments to be increased beyond 104 weeks to ensure that an employee who has already
reached 63 years and who was injured before 1 July 2017 continues to receive payments to
bridge any gap after the 104 weeks are exhausted but before the relevant pension age
(subject to ongoing eligibility determined in accordance with the SRC Act).
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Application and transitional provisions - Schedule 3
Part 10 - Miscellaneous
Division 1- Constitutional safety net
Item 63 - Constitutional safety net
450. This item ensures that the Bill complies with the requirements of paragraph
51(xxxi) of the Constitution by requiring the Commonwealth to pay reasonable
compensation if the operation of the Bill would result in the acquisition of property.
Division 2 - Transitional rules
Item 64 - Transitional rules
451. This item enables the Minister to make transitional rules and specifies matters that
may be the subject of transitional rules. Transitional rules will be a legislative instrument
for the purposes of the Legislation Act 2003.
452. Sub-item 64(3) expressly limits the power to make transitional rules. The
transitional rules may not:
create an offence or civil penalty;
provide powers or arrest, detention, entry, search or seizure;
impose a tax;
set an amount to be appropriated from the Consolidated Revenue Fund; or
directly amend the text of the Act that will be created by the Bill.
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