CHAPTER 1


CHAPTER 1

Background

Reference

1.1        On 5 March 2015, the Senate referred the Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 (the Bill) to the Senate Education and Employment Legislation Committee for inquiry and report.

Conduct of inquiry

1.2        Details of the inquiry were made available on the committee's website. The committee also contacted a number of organisations inviting submissions to the inquiry. Submissions were received from seven organisations, as detailed in Appendix 1.

Background

1.3        The Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act), which provides workers’ compensation and rehabilitation arrangements for seafarers in a defined part of the Australian maritime industry, and the Occupational Health and Safety (Maritime Industry) Act 1993 (the OHS(MI) Act), which regulates work health and safety for a defined part of the Australian maritime industry, are collectively referred to as the 'Seacare scheme.'[1]

1.4        Since the current Seacare scheme commenced in 1993, regulators and maritime industry participants have operated on the basis that coverage of the Seacare scheme was determined primarily by reference to the nature of the voyage in which a ship was engaged.[2]

1.5        In Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 (the Aucote decision), a Full Court of the Federal Court held that the coverage provisions in the Seafarers Act also operate to extend its application to all seafarers employed by a trading, financial or foreign corporation (‘constitutional corporations’), including those on ships engaged in purely intra-state trade.[3]

1.6        Based on the Aucote decision, the Seafarers Act — and potentially the OHS(MI) Act, which has very similar coverage provisions — has a much broader application than has previously been understood by regulators, maritime industry employers and maritime unions.[4]

1.7        The Bill is therefore necessary to return the operation of the Seacare scheme to what it has always been understood to be.

1.8        The Bill also makes amendments to the Seafarers Act to ensure that when the Seacare Authority grants an exemption from the Act in relation to the employment of employees on a ship, the relevant employer is also exempt from paying a levy under the Safety Rehabilitation and Compensation Levy Collection Act 1992 in relation to the employees who have been exempted from the coverage of the Seafarers Act. The amendments to the Seafarers Act are technical in nature and do not raise any human rights implications.[5]

Overview of the bill

1.9        The Bill will amend the Seafarers Act and the OHS(MI) Act to clarify the coverage of these Acts.[6]

1.10      The Seafarers Act provides workers’ compensation and rehabilitation arrangements for seafarers in a defined part of the Australian maritime industry. The Seafarers Act establishes a privately underwritten workers’ compensation scheme, with employers covered by the Act required to maintain an insurance policy to cover claims under the Act. The Seafarers Act also establishes the Seafarers Safety, Rehabilitation and Compensation Authority (the Seacare Authority), which oversees the scheme.[7]

1.11      Amending the coverage provisions of the Seacare scheme will clarify that the scheme is not intended to apply to employees engaged on ships undertaking intrastate voyages who have the benefit of State and Territory workers’ compensation schemes and work health and safety regulation.[8]

1.12      These amendments are made in response to the Federal Court decision in Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 which interpreted the coverage of the Seafarers Act as being beyond what it had widely been understood to be. The amendments are also intended to address the original Administrative Appeals Tribunal decision of Aucote and Samson Maritime Pty Ltd [2014] AATA 296 in relation to the scope of subsection 19(1).

1.13      The explanatory memorandum outlines that the amendments in the Bill will:

  • repeal provisions that apply the Seacare scheme to any employees who are employed by a trading, financial or foreign corporation, in order to ensure that coverage of the scheme is tied to whether a ship is engaged in interstate or international trade and commerce, as it was understood to be;
  • provide that the Seacare scheme applies to the employment of employees on a prescribed ship that is ‘directly and substantially’ engaged in interstate or international trade or commerce. This amendment is intended to make clear that the activity of the ship must be more than merely incidental or preparatory to interstate or international trade or commerce; for a ship to be covered by the Seacare scheme there must be a direct and substantial connection; and
  • make technical amendments to ensure that where an employee’s employment is not covered by the Seacare scheme (and so is instead covered by equivalent state legislation), their employer will not be liable for a levy in respect of that employee.[9]

1.14      The retrospective commencement of the coverage provisions is necessary to return the operation of the Seacare scheme to what it has always been understood to be.

Human rights implications

1.15      The government has assessed the bill's compatibility within human rights under relevant international instruments, and considers the bill to be compatible.[10]

Financial impact statement

1.16      Nil.

Acknowledgement

1.17      The committee thanks those organisations which contributed to the inquiry by preparing written submissions.

Navigation: Previous Page | Contents | Next Page