Navigation Amendment (Employment of Seafarers) Bill 1998
CONTENTS

OPPOSITION SENATORS REPORT
NAVIGATION AMENDMENT
(EMPLOYMENT OF SEAFARERS) BILL 1998

INTRODUCTION

1.1 Opposition senators cannot support the Navigation Amendment (Employment of Seafarers) Bill 1998 in toto. The Labor Party is prepared to support those provisions of the Bill that remove or replace outdated provisions that no longer serve any useful purpose. However, the Bill ignores the unique characteristics of this industry and contains a number of provisions that are a deliberate and direct attack on the employment conditions of Australian seafarers. Further, we have concerns that provisions of the Bill will compromise safety standards. We cannot support such provisions. Major issues of concern are addressed below.

1.2 We consider that the single most fundamental issue in this Bill is whether employment conditions prescribed in the Navigation Act should now be repealed and determined by reference to the Workplace Relations Act 1996 or whether the status quo should be maintained. We have some serious concerns in relation to allowing seafarer's terms and conditions of employment being determined by negotiation under the Workplace Relations Act 1996.

OVERVIEW OF SEAFARING INDUSTRY IN AUSTRALIA

Engagement of Seafarers in Australia

1.3 Seafarers have been employed under an industry employment system, known as the Seafarers Engagement System (SES) or the roster. Masters and officers of the ship were employed under contracts. [1]

1.4 The SES was established in 1964 and is operated by placing seafarers on a register who are then assigned to available ships based on the order of registration. [2] The SES gave effect to Australia's obligations under ILO Convention No. 9. The SES was administered by the Australian Maritime Safety Authority (AMSA) until its closure on 1st March 1998 and was funded on a cost recovery basis.

1.5 The terms and conditions under which seafarers are employed on Australian ships are regulated by the Navigation Act 1912. The Act prescribes a number of conditions under which seafarers must be employed and it is these conditions which will be abolished or amended under the Bill.

Reform in the Shipping Industry

1.6 The shipping industry has undergone enormous reform over the years. This commenced in the 1980's with the implementation of the recommendations contained in the Report of the Committee on the Revitalization of Australian Shipping, chaired by Sir John Crawford. There have been a number of reports and recommendations relating to shipping industry reform since, with the principal objective of the reform strategy to decrease the cost of sea transport by reducing the operating costs of Australian ships. Negotiations and consultation continued between the parties.

1.7 In September 1994, a Maritime Industry Restructuring Agreement was signed which resulted in a number of enterprise agreements being entered, reflecting goals agreed during the restructuring process. [3] As a result of this reform process, crew numbers have fallen from an average of 30.9 in 1985/86 to 18 per ship in 1995/96, with a resulting decrease in crewing costs from an average of $3.12 million to $2.51 million per ship. [4]

1.8 The Howard government continued to pursue widespread reform of the Shipping Industry allegedly on the basis of moving towards a more internationally competitive position. [5] On 13th August 1996 the Shipping Reform Group (SRG) was established by the former Minister for Transport, Hon. John Sharp.

1.9 The purpose of the Group was to “provide a mechanism for consultation with the industry on winding back and eventually removing the cabotage restrictions [6] on domestic shipping, and on the establishment of a Second Register [7] for Australian shipping”. [8]

1.10 The SRG was chaired by Julian Manser, CEO of Perkins Shipping Pty Ltd and consisted of representatives of Mobil Oil Aust, BHP, the Australian Shipowners Association, National Bulk Commodities Group, Howard Smith Ltd, and ALOR Pty Ltd. The SRG did not have any union or government representation, although submissions were received from the Maritime Union of Australia, Australian Council of Trade Unions, Australian Institute of Marine and Power Engineers and various State Government departments and agencies.

1.11 The SRG delivered its report to government on 25th March 1997 and made four key recommendations in relation to labour reform:

• a move to company employment
• rEducation in seafarers' leave entitlements
• abolition of the separate seafarers' workers compensation scheme; and
• provision for anticipated redundancies

1.12 In proposing the move to company employment, SRG recommended that `the Seafarers Engagement System should be terminated after company employment becomes widespread'. [9] Minister Reith formally announced on the 18th December 1997 that the government would be actively pursuing company employment in the Australian shipping industry – this was subsequently implemented in mid-1998. [10]

1.13 Although seafarers are no longer employed via the Australian Maritime Safety Authority, the terms and conditions of employment are still currently prescribed by the Navigation Act 1912.

1.14 A working group, chaired by Lachlan Payne of the Australian Shipowners' Association was established on 10th December 1998 by Hon. John Anderson. The purpose of the Working Group was to assess progress in implementing the recommendations of the SRG. [11] The Report has now been received by the Minister [12], but has not yet been publicly released, and therefore could not be considered in relation to this inquiry. It is interesting that the report has not been released to major stakeholders. We believe the report ought to have been made public, prior to pursuing the reforms sought in this Bill.

1.15 We support responsible reform to the industry, which incorporates genuine consultation with all stakeholders and recognises the unique nature of the industry. Reform must take place with genuine consultation of the key stakeholders. This has not occurred in relation to the reforms proposed by this Bill.

1.16 In fact even the Government majority report of the Joint Standing Committee on Treaties stated that “the process of consultation, from the formation of the SRG … has been imperfect”. [13]

GOVERNMENT'S JUSTIFICATION FOR CHANGE

1.17 The Government's stated objectives in introducing this legislation are outlined in the Explanatory Memorandum:- [14]

1. to remove employment related provisions that are “inconsistent with the Workplace Relations Act and the concept of company employment”. This objective is really designed to erode minimum conditions of employment.

2. to “remove outdated and inappropriate legislative requirements”. This objective is being achieved as the Labor Party supports provisions designed to achieve this.

3. to “bring legislation applying to seafarers into line with that applying to employees in other industries”. The shipping industry cannot be regarded as the same as any other industry nor can it be adequately regulated under the Workplace Relations Act, as it is unique.

4. to “reduce costs of administering and complying with legislation”. This objective should not be pursued at the expense of safety to seafarers and protection of Australia's coast-line and environment.

1.18 The Navigation Bill was introduced to regulate an industry, which was highly casual in nature. With the move to company employment provisions of the Navigation Act are “no longer relevant”. [15] It is obvious that the Government is of the opinion that the move to company employment will result in a shift to permanent employment – although the Act does not require it. In fact there is evidence of an increase in casual employment in the industry in Australia and an international trend towards casualisation. [16] We have concerns that any increase in the casualisation of the industry will result in the re-emergence and growth of the very work practices that the Navigation Act was designed to protect.

GENERAL OBSERVATIONS OF THE SHIPPING INDUSTRY

1.19 Prior to dealing with the major provisions of the Bill, it is appropriate to make a number of general observations on the shipping industry. These observations demonstrate the flaw in the Government's argument that seeks to justify much of this Bill.

Treating Shipping As Any Other Industry

1.20 When introducing the legislation last year, Minister Reith stated that one objective was to “..bring legislation applying to seafarers into line with that applying to employees in other industries”. [17] This objective was reiterated by the then Minister, Hon. John Anderson in the Explanatory Memorandum, and again by government senators in this Committee's report. [18] This objective would be achieved by replacing the employment related provisions prescribed by the Navigation Act 1912 with the “flexibility” provided by the Workplace Relations Act 1996, to determine employment conditions at an enterprise level. [19]

1.21 Simply put we believe that the shipping industry cannot be compared with and is distinguishable from other industries. The industry is unique. It is dangerous. The working environment doubles as the accommodation and recreational environment. Seafarers are isolated in terms of their working environment and from their families. They spend extended periods of time in confined spaces in their workplaces and away from their homes. These are not normal working conditions for virtually all other civilian employees in Australia.

1.22 As the 1998 Ship Safe report noted: “..a ship is not just a means of transport and a workplace. It is also a social system” [20] and that “[a]ttention should be paid to a ship as a social system as well as a means of transport and a workplace”. [21]

1.23 Taking into account the nature of the shipping industry we do not accept that the Workplace Relations Act will offer adequate protection to this group of isolated workers. The Government believes that seafarers can negotiate their terms and conditions of employment on an individual basis. We are not so confident. Nor was Justice Higgins when he commented in his Harvester judgment:- “I cannot think than an employer and a workman contract on an equal footing.” [22] In their publication on the Workplace Relations Act 1996, Joe Catanzariti and Mark Baragwanath comment on the relative bargaining positions of parties in an AWA:- “In a situation where the agreement is with an individual employee, that employee has virtually no bargaining power.” [23]

1.24 As Ms Houlton observed in her evidence: “When it comes to negotiating their conditions, it is not as though they can just hop off if they are not happy with the way that their employment contracts are going”. [24]

Safety and the Environment

1.25 The importance of ship safety cannot be overstated. As the Director General of the ILO noted in 1996:-

“the dangers to which shipowners and governments are exposed are financial or political in nature, but seafarers are exposed to physical risks which threaten their very lives. It has, for example, been emphasised that since 1994, 180 ships or more than 500 tonnes have been lost at sea causing the death of 1200 seafarers and many passengers. In the first six months of 1996, twice as many human lives were lost at sea than in the whole of 1995.” [25]

1.26 The shipping industry must protect the safety of those on board, of other ships and the environment. Any de-regulation of the industry cannot include any compromise on safety issues. The recent leaking from an Italian ship of approximately 300 000 litres of oil into Sydney Harbour highlights the environmental disaster which can befall our cities and coastline resulting from an incident on board a ship.

1.27 We conclude that the very issues being dealt with by this Bill directly impact upon safety – in relation to crew welfare and certification of seafarer's qualifications.

Crew Welfare

1.28 The 1998 Ship Safe report noted that “attention to the human factor is crucial if shipping is to be made safer” and that it “constitutes a significant risk factor for ship safety”. [26] The report went on to conclude: “to a degree, violations of crew welfare are commercially driven. Costs associated with crew welfare are to some extent discretionary. Therefore, this expenditure is vulnerable to rEducation when margins are slim.”

1.29 It should be noted that this Committee was dominated by Government members.

1.30 Research has concluded that “within the last 30 years the cause of ship accidents in the majority of cases has not been technical failure, but human error or substandard actions” [27] and that “the most dangerous risk to a seafarer is ….from social conditions on board, both at sea and in port.” [28]

“Recruitment, placement, certification and suitability for employment are essential `social conditions' which lead to crew safety.” [29]

1.31 The Marine Council plays an important role in regulating seafarers suitable for a life at sea, by enforcing the Code of Conduct and maintaining a registration system for seafarers. Again these are matters which affect the welfare of those at sea and ultimately safety.

Certification of Seafarers' Qualifications

"It is undeniable that the quality of crew training is a central factor in maintaining ship safety". [30]

1.32 Therefore, it is imperative that a seafarer be adequately certified as qualified for the work performed and that adequate training be provided and be scrutinised by an independent party.

1.33 Given the importance of crew qualifications as an integral part of safety on board the ship, the very real threat of forged or inappropriate certificates would compromise that safety.

"The possession of forged certificates poses problems for several reasons … [it may] suggest that a crew member does not have the requisite training and experience necessary to perform his/her tasks properly, so affecting the safe operation of the ship". [31]

1.34 The 1998 Ship Safe Report of the House of Representatives Standing Committee on Transport, Communication and Infrastructure, expressed concern at the “continued availability of false certificates and the lack of appropriate certificates held by some crew members.” [32] The report noted that “in a recent crackdown by the Japanese Ministry of Transport, 25 officers on board 11 foreign vessels were found to have no proper qualification certificates.”

1.35 It has been reported that for as little as US$300, it is possible to purchase qualification certificates and that “20% of the world's seafarers are now from the Philippines and …90% of them are sailing on worthless papers”. [33]

1.36 A relaxation of our rules in relation to qualification certificates will encourage and no doubt result in a lowering of our safety standards.

International Labour Organisation Conventions

1.37 The ILO recognises the special nature of conditions of work and of life of seafarers and has adopted over 50 Conventions and Recommendations specifically applying to seafarers. Unfortunately Australia has not seen fit to ratify outstanding ILO Conventions relevant to this industry, despite recommendations to this effect. [34] The Department's supplementary submission provided a comprehensive assessment as to the status of outstanding ILO's. [35] The MUA submits that the international trend is towards greater regulation of this industry and not de-regulation as proposed by this Government. [36] We call upon the Government to take immediate steps to ratify these ILO Conventions.

Improving International Standards

1.38 We conclude that the Government's underlying justification for this Bill is based upon the presumption that “Australian seafarers enjoy exceptionally good working conditions”. [37] Minister Reith stated that "much more needs to be done to make Australian crewed vessels more competitive". [38] Minister Reith then went on to state that conditions in the shipping industry 100 years ago possibly justified the detailed employment provisions in the Act, but that "this is not the case today, when Australian seafarers enjoy exceptionally good working conditions". [39] The Department's supplementary submission made numerous references to the uncompetitiveness of Australian crewed vessels on an international level. [40]

1.39 In pursuing this aim, the Government appears willing to ignore safety and working conditions for Australian seafarers.

1.40 The three Ships of Shame Reports into Ship Safety, of the House of Representatives Standing Committee on Transport, Communications and Infrastructure investigated the international working conditions of crew members and their treatment by owners and ship's officers.

1.41 The Committee heard evidence that the extent of this maltreatment extended to:-

• “denial of food and provision of inadequate food;
• bashing of crew members by ships officers;
• maintenance of two pay books, one for official records of International Transport
  Workers' Federation levels of pay, the other for the real lower level of pay;
• under or non-payment of wages and overtime;
• inadequate accommodation and washing facilities;
• sexual molestation and rape;
• depriving access to appropriate medical care; and
• crew members being considered as `dispensable'.” [41]

1.42 It was noted in 1992 that:-

• "crews from non-traditional maritime nations are those which work in inadequate
  conditions, are poorly paid and whose living quarters are substandard.
• mistreated crew members are reluctant to complain as they will be black listed by crewing agencies and will be refused work as a seafarer.
• many crew are forced to sign contracts which forbid them to contact the International Transport Workers' Federation, if they do they are instantly dismissed and threatened that they will never work as a seafarer again;
• crew members have often had to pay a fee to crewing agencies in order to secure employment and are reluctant to jeopardise their job security because of unemployment at home and the substantial investment made - this fee can be as high as US $4 000.” [42]

1.43 This is not a problem of 100 years ago as stated by Minister Reith. These are problems experienced by international seafarers now. In 1995 the Committee noted that “sub-standard ships and practices still exist; crews are still being beaten, harassed, abused and deprived of basic human rights”. [43]

1.44 The 1998 Report lamented that “in all the focus areas before the committee in this inquiry, crew welfare appears to have progressed the least in the 1990's, and much remains in need of improvement”. [44] These comments from a committee dominated by Government members are completely at odds with the assertions of Ministers Reith and Anderson.

1.45 We do not accept or agree that Australian seafarers safety and employment standards ought to fall to this level in order to become more internationally competitive – if indeed that were the outcome. A long term competitive advantage for this industry in a global economy cannot be built at the expense of workers conditions of employment.

1.46 Australia has an obligation to improve the conditions of all international seafarers, not just to lower our own standards, in order to become internationally competitive. President Clinton has addressed this very issue in his speech to the World Trade Organisation on new global trade talks in Geneva on 18th May 1998, where he stated:

“…We must recognise that in the new economy, the way we conduct trade affects the lives and livelihoods, the health and safety of families around the world. We must build a trading system for the 21st century that honours our values as it expands opportunities. We must do more to make sure that this new economy lifts living standards around the world and that spirited economic competition among nations never becomes a race to the bottom in environmental protection's, consumer protection's and labour standards. We should level up, not level down. Without such a strategy, we cannot build the necessary public support for the global economy. Working people will only assume risks of a free international market if they have the confidence that this system will work for them.”

The Need for Regulation

1.47 As has been illustrated by the various Parliamentary Committees, the shipping industry is unique - seafarers live in a working environment for long periods, unlike any civilian employee.

1.48 The shipping industry is dangerous and exploitation of crew members is widespread in non-traditional maritime nations. [45] There is clearly need for special regulation of this industry.

1.49 The 1992 Ships of Shame Report noted the need for regulation:- "This ship safety system is locked in a vicious circle. Due to commercial considerations some owners/managers operate substandard ships, flag states and classification societies are failing to observe shipping standards because of competitive pressures, while this lack of effective regulation results in the standard of shipping declining even further". [46]

1.50 The above warnings were echoed by the 1998 committee report, where they reported:- “the committee notes that continued downwards pressure on freight rates has provided the drive to cut the key variable costs – maintenance and crew costs. The suffering of seafarers subjected to abuses and exploitation can provide financial reward to the beneficial owners of vessels and charterers and cargo owners. The committee believes that freight owners should recognise and accept that those who own, operate or work in international shipping are entitled to a fair reward for their investment or labour. The committee believes that the abuse and neglect of seafarers is rooted in a callous indifference to human life and facilitated by an inadequate international legal framework”. [47]

1.51 We consider that a regulatory framework must remain, in order to protect Australia's seafarers from conditions of employment suffered by seafarers employed on ships outlined in the Ships of Shame Reports and Ship Safe Report.

SPECIFIC PROVISIONS OF THE BILL

Articles of Agreement and Discharge System

1.52 The long standing practice of requiring seafarers to enter into Articles of Agreement is to be removed by this Bill.

1.53 The Government's objections to Articles are that they are “prescriptive” [48] and inconsistent with the objectives of the Workplace Relations Act 1996. The Government considers that underpinning seafarers terms and conditions of employment with reference to the Workplace Relations Act 1996 would allow “flexibility”. [49]

1.54 It is interesting to note that Mr Toomer later stated that with this flexibility may result in labour becoming cheaper, depending upon the seafarers “ability to negotiate”. [50]

1.55 We agree. The removal of articles of agreement would allow flexibility only to the extent of obtaining cheaper labour. The Ships of Shame and Ship Safe Reports outlined the working conditions of seafarers with little negotiating or bargaining strength. We do not accept that Australian seafarers ought to be placed in a similar position.

1.56 Of concern should be the evidence of the increasing casualisation of this industry, particularly in light of the move to company employment. [51] The Government's own submission pointed to the fact that Articles were developed in the 1920's to offer legal protection to seafarers at a time when the industry was highly casualised. [52]

1.57 The Government considers that “the welfare of Australian crews will continue to be protected by:….the Employment Advocate”. [53] The evidence of Ms Houlton provided an interesting insight into the willingness of the Employment Advocate to protect the welfare of Australian seafarers. The witness telephoned an officer of the Employment Advocate to advise of an employer who offered AWA's to their employees on the basis that their employment would not be continued, unless the individual agreements were signed. The employer had also sent a letter to the employees advising that an award covered their employment. The correspondence failed to point out that an expired enterprise agreement also covered their terms and conditions of employment. The officers response was that “those people are not highly educated. They really would not know what covered them”. [54]

1.58 This example demonstrates the inability of the Employment Advocate to protect the interests of Australian seafarers and provides justification for retention of the Articles system.

1.59 Mr Toomer and Mr Hollings referred to the prescriptive nature of the Articles system and some practices required to be performed under the system, which justified their abolition. [55] However, we consider that those elements of the Articles system that are outdated may be removed through amendments to the subordinate legislation, not by abolition of the system itself.

1.60 The Maritime Union of Australia raises the very serious concern of safety as justification for retention of the Articles system. The ability of the Australian Maritime Safety Authority to independently audit the contemporaneous records of sea service, as evidenced by the Articles and lodged with AMSA, will be removed. [56] The Government contends that this will be replaced by a Marine Order requiring the employer to supply a statement of service. [57] We do not conclude that this is an adequate alternative to the present arrangements. This may lead to “employers ….. keen to have their workforce recognised as highly skilled, having an incentive to misrepresent the service history of their employees” and “enhance the risk of under skilled seafarers being hired”. [58]

1.61 In their supplementary submission, the MUA points to the international experience where Articles are not in existence. The Phillipines was provided as an example, where fees were paid to undertake a seafarers training course, with a qualification certificate issued if the course was passed. When the system was tightened to enforce attendance at the course and cheating was curtailed, the pass rate dropped from 80 to 10 per cent. The MUA pointed that this practice may have moved to other countries such as “Russia, Ukraine, Syria and Lebanon”. [59]

1.62 Another example provided was the placement of “passport holders” in India, where cheap seafarers having served a certain period on board could apply for certification without having their competence tested. [60]

1.63 These raise serious concerns, which we share. The abolition of the Articles of Agreement system may well compromise the integrity of certification of seafarers qualifications, leading to safety concerns.

Fees for the Supply of Seafarers

1.64 The Bill provides for the removal on the prohibition for charging fees for providing employment for seafarers. This provision was to prohibit a practice known as crimping, where a seafarer paid a bribe in order to secure employment on a ship. [61] Section 32 fulfils Australia's obligations under ILO Convention No.9. [62] Article 2 establishes that the business of finding employment for seafarers not be carried out for pecuniary gain and directs that the ratifying country prohibit and punish such violations. [63]

1.65 ILO Convention No. 9 (Placing of Seamen Convention, 1920) was ratified by Australia on 3rd August 1925, but denounced by the Australian Government on the 31st August 1998.

Revision and Denunciation of ILO No. 9

1.66 The ILO has recognised the need for revision of ILO No. 9 and in 1996 adopted ILO No. 179 (Recruitment and Placement of Seafarers), which removes the prohibition on fee-charging employment agencies and makes provision for the regulation of such agencies.

1.67 Australia has not ratified ILO No. 179 and has indicated that it will not do so until the Shipping Reform Group process has been finalised. [64]

1.68 On the 23rd October 1997, Minister Reith announced during a speech to the National Shipping Industry Conference that the Government was considering denouncing ILO Convention No. 9. On 18th December 1997 Minister Reith announced the government's intention to commence the process to denounce ILO No. 9. The denunciation was only formally notified to the ILO on 31st August 1998. However, denunciation only takes effect 12 months after registration of denunciation and Australia continues to have obligations under the Convention until such time. [65]

1.69 The protocol to be followed when denouncing an ILO is set out in ILO Convention No. 144, Article 5.1(e) – Tripartite Consultation (International Labour Standards). Governments considering denunciation of an ILO are obliged to consult employer and employee organisations. The Government failed to follow ILO conventions when attempting to denounce ILO No. 9. It is interesting to note that the Government refuses to ratify outstanding ILO conventions relevant to the maritime industry until consultation and agreement with the States and Territories. [66] However, “the proposed denunciation of ILO Convention No. 9 was not referred to the Commonwealth-State Standing Committee on Treaties”. [67]

1.70 The majority report of the Joint Committee on Treaties in their 15th Report were critical of the Government's lack of consultation in relation to the intended denunciation, describing them as “clearly inadequate”. [68]

1.71 This majority report stated that “the process of consultation, from the formation of the SRG to the decision to denounce ILO Convention No. 9 has been imperfect”. [69]

1.72 The majority report of the Joint Committee recommended that ILO 9 be denounced, but that proper consideration be given to the adoption of ILO No. 179 with the aim of ratification by the time ILO No. 9 is denounced.

1.73 Further, “that the Government's ratification of ILO Convention No. 179 should be considered as part of the process of reform to accompany the SRG reforms recommended in 1997”. [70]

1.74 This is an important point and one with which we agree – no consideration should be given to abolishing section 32 of the Bill, until such time as ILO Convention No. 179 is ratified. Even the Government's Members and Senators on the Joint Committee on Treaties understood this point.

1.75 The minority report concurred with the majority that ILO No. 179 should be in place at the time ILO 9 is denounced and considered that the issue was of such importance that the decision to denounce ILO 9 should be reversed pending ratification of ILO No. 179. [71]

1.76 The minority report raised concerns about the possibility of “employment agencies without industry experience” being “properly equipped to select persons with the special skills and qualities necessary to become seafarers.” [72] Further they considered that “ILO Convention No. 179 is directly relevant to the establishment of a properly regulated and supervised system for the engagement of seafarers and must be regarded as an imperative to safety in this industry. [73]

1.77 In the Department's supplementary submission, they point to their inability to regulate the placement of seafarers via labour hire agencies, as Job Network has been contracted to “government, community and private organisations”. [74] We do not agree. The fact that the Government believes that it is too difficult to regulate this industry, confirms in our opinion, the MUA's concerns and those of the minority of the Treaties Committee, that those who place seafarers in the industry, must have the relevant skills, knowledge and expertise. Anything less will compromise the safety of the industry.

1.78 We do not support the repeal of section 32 until such time as ILO Convention No. 179 is ratified by Australia. We also note the concerns that the repeal of this section may encourage the re-emergence of crimping. [75]

Marine Council

1.79 This Bill seeks to abolish the Marine Council. Section 424 of the Navigation Act establishes the Marine Council, whose membership consists of equal numbers of employers and employees, as well as a representative from the AMSA. Under section 424(5), the Council has an obligation to inquire and report to the Minister upon any matter arising out of the Act. The Council's principal function is to assess the suitability of people for employment at sea, through a system of registration and to deal with accommodation issues. The Council will consider a person's suitability for employment as a seafarer, when investigating a serious breach of the Code of Conduct. The Council has the power to de-register a seafarer, effectively preventing them working in the industry. [76]

1.80 The Marine Council is not unique. A similar system of registration and licensing is operated by the United States Coast Guard. [77]

1.81 The Government argument that such matters ought to be regulated by the employer in line with other industries, [78] is rejected by the MUA and AIMPE [79]. The MUA and AIMPE quite rightly point to the unique nature of the industry, ie. living in close quarters for extended periods of time and the necessity for independent regulation of those who work in that industry. Both unions expressed concern that a seafarer who may have previously been deregistered and legally prevented from working will merely move to another employer. [80] The Marine Council's deregistration would have prevented this.

1.82 We see little merit in the argument that removal of the Marine Council will bring the seafaring industry in line with other industries. Many industries do have registration of their members regulated by an independent body, and they do investigate such matters as conduct and behaviour. Senator Tierney during a question to Ms Houlton referred to the railway industry as an example which does not have independent regulation. [81] However the Senator failed to refer to Law Societies which register solicitors. Those Societies hear complaints about a solicitors' conduct or behaviour and have the right to de-register a member, effectively preventing them from working in the industry. Similar systems of registration are in place for doctors and teachers. We do not consider it unreasonable that given the unique nature and safety requirements of the industry, some independent regulation of those who work in it is required.

1.83 We support retention of the Marine Council and its functions.

1.84 Prohibition on Crew Handling Cargo or Ballast

1.85 The Bill proposes to remove the prohibition on crew handling cargo or ballast on the basis that this should be determined by negotiation between the parties. The example of allowing crew to handle residues of cargo for the cleaning of holds and loading of stores is provided as the justification for the removal of this prohibition. [82]

1.86 The Information Paper states “Australian stevedoring companies already have their own workforce, and the size of that workforce is not affected by provisions in this Act”. [83] There is little cogency to this argument. The Bill proposes to remove the prohibition and there will be no regulation as to the types of cargo and in what circumstances they may be handled by the crew. The Bill will not limit the handling to the examples provided in the Explanatory Memorandum.

1.87 Our concern is with the quality of the certification required to perform that stevedoring work. We have already outlined evidence in the Ships of Shame and Ship Safe report about forged qualification certificates. The committee heard evidence about international practices whereby qualifications are obtained without adequate training. By allowing such seafarers to handle cargo in port, we would be leaving Australia's coastline susceptible to occupational safety and environmental problems.

1.88 The MUA provided the recent example of an incident to outline their concerns. “[T]he crew of a Japanese vessel which was moored in Port Lincoln in South Australia attempted to move tuna onto trucks on the wharf. This was in direct contravention of the existing provisions of the Navigation Act 1912 and the Immigration Act. This incident demonstrates that given an opportunity some operators will attempt to flout the law thereby creating risks.” [84]

1.89 We are not satisfied that there is adequate protection for safety and the environment in the proposed amendments and cannot support repeal of the prohibition in respect to cargo. We accept AIMPE's submission in relation to ballasting and support removal of the prohibition in that respect.

Maximum Period of Service on a Ship

1.90 The Government again uses the rhetoric of allowing these matters to be negotiated at an enterprise level on the basis of justifying normal employment relations. [85]

1.91 As previously outlined, we do not consider the seafaring industry to be “normal”. We believe that protection via this legislation should be offered to those at risk of exploitation. Section 50(1) places a six month restriction on the duration of an article of agreement. We consider it reasonable that seafarers are prevented from being engaged for no longer than six months at sea. The MUA provided an example of seafarers remaining on a vessel for years, rather than risk failing to obtain further employment. [86]

1.92 We will propose amendments to this Item in the Bill, in order to support removal of some subsections contained in section 50.

Sick Leave Entitlements

1.93 This section of the Act provides for a maximum of three months sick leave for a seafarer left onshore due to illness during a voyage. The Government believes that such matters ought to be dealt with at an enterprise level. [87] The Shipowners Federation does not oppose the repeal of section 132. The Federation believes that the legislative minimum entitlements available to employees in the “normal course of employment in Australia” are relevant in setting a minimum and that claims in excess of that would be pursued by the relevant Unions. [88]

1.94 Both Unions support retention of these provisions. AIMPE sets out the public policy reason behind continuation of the repatriation provisions – the ability of a seafarer to receive timely medical treatment may result in rather minor problems becoming more serious. [89] With the removal of these provisions a seafarer must make a decision of continuing to work whilst ill or going ashore to seek medical treatment. In the event that the seafarer continues to work, due to the removal of these provisions, then this will create a safety risk to the remainder of the crew. [90]

1.95 We can find no justification for removal of the provisions relating to repatriation of seafarers. The international standard is comparable to the provisions of section 132 and it is accepted that the standard for seafarers cannot be compared to the norm. [91] There cannot be any benefit in having seafarers negotiate these conditions at an enterprise level – the only obvious benefit is to the employer, in that what is now a statutory requirement will be lost. Mr Parmeter in his evidence believes that even without statutory regulation as being repealed in this Bill, “I do not think there is any suggestion that those companies would seek to behave differently now from the way that they have behaved in the past”. [92]

1.96 If that is so, there is no reason for the change. If that is not the case, then there is a positive reason to retain the provision to ensure reasonable minimum standards are adhered to by employers.

1.97 We also note that many States legislatively provide for sick leave entitlements.

1.98 We do not support repeal of the provisions dealing with sick leave entitlements for seafarers.

Provisions Relating to Production of Certificates of Qualifications of Seafarers and Crew Details

1.99 As outlined in our discussion on Articles of Agreement, we do not accept that provisions relating to AMSA's role in certification ought to be compromised. As such we do not support the repeal of sections 17 and 52 on safety reasons.

CONCLUSIONS

1.100 We conclude that the purpose of this Bill is to attack employment conditions of Australian seafarers. This is evidenced by the Departments supplementary submission. “International shipping is subject to intense competitive pressures and operators both in Australia and overseas have been vigorously pursuing cost rEducations to survive in an environment of low fright rates worldwide.” [93] “Manning costs are a primary source of Australian shipping's uncompetitive position… and direct wage costs are comparable to those of nationals from similarly developed countries. High manning costs mainly reflect high leave and other employment related on-costs such as workers compensation.” [94]

1.101 Therefore we can only conclude that notwithstanding the comparable wage costs to other developed nations, this Bill is designed to reduce wage costs to a level of developing nations. We cannot support such provisions.

1.102 The Labor Senators recommend that this bill not proceed in its current form.

 

Senator Kim Carr
Deputy Chair

Senator Jacinta Collins

 

Footnotes

[1] Bills Digest, No. 94, 1998-99, pp. 2-3.

[2] Australian Shipping Federation, Submission No. 3, p. 5.

[3] See generally Bills Digest, No. 94, 1998-1999, p. 7.

[4] Treaties Committee, 15th Report, June 1998, p. 21.

[5] Minister Reith, speech to the Australian Chamber of Shipping, 6th November 1997.

[6] “refers to the practice of limiting access to a country's coastal trade to national shipping operators or national flag vessels with national crews” – Bills Digest, No. 94, 1998-99, p. 11.

[7] “are additional to the principal national shipping registers and have fewer restrictions, including reduced corporate and personal taxation requirements and allowing the employment of non-national crews. The intention is to create an environment in which national shipping can be competitive with the open registers of such countries as Liberia and Panama” – Bills Digest, No. 94, 1998-99, p. 11.

[8] Bills Digest, No. 94, 1998-99, p. 6.

[9] Bills Digest, No. 94, 1998-99, p. 7.

[10] “Reith moves to end pooled labour for maritime industry”, press release, Minister Reith, 18th December 1997.

[11] Bills Digest, No.94, 1998-99, p. 8.

[12] Toomer, G., Hansard, Melbourne, 20 July 1999, p. 16.

[13] Joint Standing Committee on Treaties, 15th Report, June 1998, p. 27.

[14] Explanatory Memorandum, Minister for Transport and Regional Services, December 1998, pp. 3-4.

[15] Reith, Hon., Second Reading Speech, 25 June 1998, Hansard, p. 5369; and Anderson, Hon. Second Reading Speech, 9 December 1998, Hansard, p. 1657.

[16] Houlton, J.A., Hansard, 20 July 1999, pp. 3-4; and MUA supplementary submission, 30th July 1999, pp. 4-5.

[17] Reith, Hon., Second Reading Speech, 25 June 1998, Hansard, p. 5370.

[18] Anderson, Hon. John, Explanatory Memorandum, December 1998, p. 4.

[19] Reith, Hon., Second Reading Speech, 25 June 1998, Hansard, p. 5369; and Anderson, Hon. John, Second Reading Speech, 9 December 1998, Hansard, p. 1657.

[20] Ship Safe: “An inquiry into the Australian Maritime Safety Authority annual report 1996-1997”, Report from the House of Representatives Standing Committee on Transport, Communication and Infrastructure, August 1998, p. 43.

[21] Ship Safe: “An inquiry into the Australian Maritime Safety Authority annual report 1996-1997”, Report from the House of Representatives Standing Committee on Transport, Communication and Infrastructure, August 1998, p. 51.

[22] Ex Parte H v. McKay (1907) 2 CAR 1 at p. 4.

[23] Catanzariti, J. and Baragwanath, M., The Workplace Relations Act, Newsletter Information Service 1997, p. 22.

[24] Houlton, J.A., Hansard, Melbourne, 20 July 1999, p. 1.

[25] Hansenne, M., 22 October 1996 - address to the 84th Session of the ILO.

[26] Ship Safe: “An inquiry into the Australian Maritime Safety Authority annual report 1996-1997”, House of Representatives Standing Committee on Communications, Transport and Microeconomic Reform, August 1998 p. 43.

[27] Gaarder, Stein & Jon Vander Schaus, “Necessary steps towards a total safety approach to shipping”, DNV R & D Briefing, 1996, quoted in MUA supplementary submission, Appendix A, p. 2.

[28] Gaarder, Stein & Jon Vander Schaus, “Necessary steps towards a total safety approach to shipping”, DNV R & D Briefing, 1996, quoted in MUA supplementary submission, Appendix A, p. 2.

[29] MUA supplementary submission, Appendix A, p. 7, quoting from Gaarder, Stein & Jon Vander Schaus, “Necessary steps towards a total safety approach to shipping”, DNV R & D Briefing, 1996.

[30] Ships of Shame, Inquiry into Ship Safety, Report from the House of Representatives Standing Committee on Transport, Communications and Infrastructure, December 1992, p. 33.

[31] Ships of Shame, Inquiry into Ship Safety, Report from the House of Representatives Standing Committee on Transport, Communications and Infrastructure, December 1992, p. 34.

[32] Ship Safe: “An inquiry into the Australian Maritime Safety Authority annual report 1996-1997”, House of Representatives Standing Committee on Communications, Transport and Microeconomic Reform, August 1998 p. 38.

[33] Bolitho, Captain Bill, former Chairman of the Australian Shipping Line, speech to the 5th Whitlam Lecture, Sydney, August 1998.

[34] MUA, Submission No. 2, p. 7; and MUA supplementary submission, p. 3 of Annexure “A”.

[35] Department of Transport and Regional Services, Supplementary Submission, 23rd July 1999.

[36] MUA, Submission No. 2, p. 3.

[37] Anderson, Hon. J., Second Reading Speech, 9 December 1998, Hansard, p. 1658.

[38] Reith, Hon. P., second reading speech, Hansard, p. 5370.

[39] Reith, Hon. P., second reading speech, Hansard, p. 5374.

[40] Department of Transport, supplementary submission, 23 July 1999, pp. 2-3.

[41] Ships of Shame, Inquiry into Ship Safety, Report from the House of Representatives Standing Committee on Transport, Communications and Infrastructure, December 1992, p. 36.

[42] Ships of Shame, Inquiry into Ship Safety, Report from the House of Representatives Standing Committee on Transport, Communications and Infrastructure, December 1992, pp. 36-37.

[43] Ships of Shame, A Sequel, Inquiry into Ship Safety, Report from the House of Representatives Standing Committee on Transport, Communication and Infrastructure, November 1995, p. xiii.

[44] Ship Safe: “An inquiry into the Australian Maritime Safety Authority Annual Report 1996-1997”, Report from the House of Representatives Standing Committee on Transport, Communication and Infrastructure, August 1998, p. 51.

[45] MUA, supplementary submission, 30th July 1999 p. 4.

[46] Ships of Shame, Inquiry into Ship Safety, Report from the House of Representatives Standing Committee on Transport, Communications and Infrastructure, December 1992, p. 27.

[47] Ship Safe: “An inquiry into the Australian Maritime Safety Authority annual report 1996-1997”, Report from the House of Representatives Standing Committee on Transport, Communication and Infrastructure, August 1998, p. 51.

[48] Hon John Anderson, Information Paper, June 1999, p. 5.

[49] Toomer, G., Hansard, Melbourne, 20 July 1999, p. 14.

[50] Toomer, G., Hansard, Melbourne, 20 July 1999, p. 15.

[51] Houlton, J.A., Hansard, Melbourne, 20 July 1999, pp. 3-4; and MUA supplementary submission, p. 5.

[52] Hon John Anderson, Information Paper, June 1999 p. 5.

[53] Hon John Anderson, Information Paper, June 1999 p. 7.

[54] Houlton, J.A., Hansard, Melbourne, 20 July 1999, p. 6.

[55] Toomer, G. and Hollings, G., Hansard, Melbourne, 20 July 1999, p. 17.

[56] MUA, Submission No. 2, p. 5; and supplementary submission, 30th July 1999, p. 1.

[57] Hon John Anderson, Information Paper, June 1999 p. 6.

[58] MUA, Submission No. 2, p. 5.

[59] MUA, supplementary submission, 30th July 1999, p. 2.

[60] MUA, supplementary submission, 30th July 1999, p. 2.

[61] Anderson, Hon. John, Information Paper, June 1999 p. 4; and MUA, Submission No. 2, p. 6.

[62] AIMPE, Submission No. 1, p. 2.

[63] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998.

[64] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998, p. 26.

[65] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998, p. 26.

[66] Department of Transport, supplementary submission, 23rd July 1999; and Anderson, Hon. John, Information Paper, June 1999, p. 2.

[67] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998, p. 26.

[68] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998, p. 25.

[69] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998, p. 27.

[70] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998, p. 27.

[71] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998, p. 74.

[72] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998, p. 72.

[73] 15th Report, Joint Standing Committee on Treaties, Denunciation of ILO Convention No. 9, June 1998, p. 74.

[74] Department of Transport, supplementary submission, 23rd July 1999, p. 10.

[75] MUA, Submission No. 2, p. 6; and MUA supplementary submission, 30 July 1999, p. 4.

[76] see generally Bills Digest, No. 94, 1998-1999, p. 3; and Hollings, G., Hansard, p. 19.

[77] MUA, Submission No. 2, p. 2.

[78] Anderson, Hon. John, Information Paper, June 1999, p. 6; and Hollings, G., Hansard, Melbourne, 20 July 1999, p. 19. Hon. John Anderson, Second Reading speech, 9 December 1998, Hansard, p. 1657.

[79] MUA, Submission No. 2, pp. 2-4; and AIMPE, Submission No. 1, pp. 1-2.

[80] MUA, Submission No. 2, pp. 2-4; and AIMPE, Submission No. 1, pp. 1-2.

[81] Hansard, Melbourne, 20 July 1999, p. 4.

[82] Anderson, Hon. John, Second Reading speech, 9 December 1998, Hansard, p. 1657; and Information Paper, June 1999, p. 5.

[83] Anderson, Hon. John, Information Paper, June 1999, p. 5.

[84] MUA, supplementary submission, 30 July 1999, p. 7.

[85] Anderson, Hon, John, Information Paper, June 1999, p. 6.

[86] MUA, supplementary submission, 30 July 1999, p. 3.

[87] Anderson, Hon. John, Information Paper, June 1999 p. 6.

[88] Australian Shipping Federation, Submission No. 3, p. 5.

[89] AIMPE, Submission No. 1, pp. 4-5.

[90] MUA, Submission No. 2, pp. 6-7.

[91] MUA, supplementary submission, 30th July 1999, p. 6.

[92] Parmeter, D., Australian Shipping Federation, Hansard, Melbourne, 20 July 1999, p. 8.

[93] Department of Transport, supplementary submission, 23rd July 1999, p. 2.

[94] Department of Transport, supplementary submission, 23rd July 1999, p. 3.