Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise to oppose the Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015.

In December last year the Federal Court made a determination that the Seafarers Rehabilitation and Compensation Act 1992 not only covers registered ships trading interstate or overseas but also extends to cover all employees on all registered ships if they are owned by an Australian trading corporation, an Australian financial corporation or a foreign corporation. This decision applies no matter whether they are trading in Australia or what the business of the ship may be, and that includes ships engaged in intrastate work. The government asserts the necessity for this bill arises because of that decision: Samson Maritime Pty Ltd v Aucote 22 December 2014.

Labor acknowledges this decision has created uncertainty in the industry, an uncertainty that needs to be resolved, and we acknowledge that has to be done as expeditiously as possible. That is why we worked cooperatively with the government to expedite a Senate committee process to investigate the proposed bill. However, what the Senate committee process—in particular matters raised in the dissenting report—has revealed is that the current bill is not the solution. The government has clearly not conducted a genuine consultative process in the drafting of this legislation. Key employer bodies and unions were not adequately consulted. The Australian Shipowners Association, I am advised, were not consulted and were not even invited to submit their views to the Senate inquiry. There was no bona fide consultation with the Maritime Union of Australia. To quote from the submission by another union, the Australian Maritime Officers Union, to the Senate inquiry:

Notwithstanding the fact that the AMOU is one of the three unions representing workers who will be directly affected by this legislation, our comment on the Bill was not sought by Government or any relevant Departments or Agencies prior to its introduction into the Parliament.

The government has been caught unprepared and has sought to hastily respond with an ill-conceived bill that may well leave workers worse off. The opposition believes it is absolutely incumbent on the government to meet with industry, employer organisation and employee organisations to arrive at a sensible solution—something that, we would argue, it has not sought to do. This must be done as a matter of urgency, as a sensible resolution to this is critical for the industry.

The government asserts that the bill will restore the alleged shared understanding of the operation and coverage of the seafarers act prior to the Federal Court decision of last year. Labor believes that this bill goes further than simply restoring that alleged pre-Federal-Court consensus. As the Administrative Appeals Tribunal and Federal Court decisions indicate, there was never an existing consensus, and indeed there has never existed an intention that the seafarers act would only cover a very limited cohort of seafarers, as outlined in this bill.

The intent of this bill is to make the legislation only applicable to ships undertaking a voyage of interstate or overseas trade. This goes much further than anything which arises out of the Aucote decision. It must be remembered that the seafarers authority, Mr Aucote's employer and the insurer all believed Mr Aucote to be covered by the act before there was an apparent reconsideration. The insertion of 'directly and substantially', which were the exact words put by counsel for the employer in the Aucote case, is likely to create further confusion about the way in which coverage is interpreted and therefore not resolve the existing uncertainty. As the Maritime Union have noted in their submission to the Senate inquiry:

Only those vessels which can be said to be explicitly involved in interstate or overseas trade will be clearly within the scope of the Act … Vessels which operate in mixed intra-state and inter-state activities will be in limbo.

On top of restricting section 19(1), the government is proposing to repeal essential elements of coverage provisions in sections 19(2), 19(3), 19(4) and 19(5) of the 1992 act. These provisions are crucial in clarifying the powers of the Commonwealth to legislate in respect of seafarers. The government's changes would limit the application of 22-year-old legislation.

Given the government's bill proposes to limit the application of the Seacare scheme, it is important to consider that state and territory legislation is not equivalent to the seafarers act as the government claims. State and territory schemes are in some cases inferior. This raises the very real and distinct prospect of workers being worse off as a result of this bill. A compelling example provided to the Senate Inquiry was that under one of the state schemes, if a seafarer aged 30 with a dependent wife and child is permanently incapacitated, he will exhaust his compensation payments after only two years. This worker would then be forced to turn, most likely, to social security and would be on a disability support pension, most likely for the rest of his life. However, under the seafarers act this same worker, if required, would be entitled to ongoing weekly compensation payments as a proportion of his ordinary wages until the age of 65. This legislation therefore would deny existing and future workers their rights and ensure that they would be potentially hundreds of thousands of dollars worse off.

That is the concern that the opposition have. We do believe, with the government, that this is a matter that needs to be determined, we do not accept that the matter is settled by the Federal Court, and we do therefore think that there has to be an expeditious process to settlement. But we do not believe that this bill lands that settlement, because of the likelihood that existing entitlements will be denied by the enactment of this legislation.

Labor understands that the Seacare authority is intending to grant a transitional exemption that aims to provide certainty to maritime industry stakeholders on their workers compensation arrangements while the government considers long-term arrangements following the decision. Given the opportunity this exemption creates, the government should expeditiously convene a meeting with the industry to arrive at a sensible solution to end the uncertainty created by the decision for employers and employees. We believe that, by engaging with industry, the government can ensure that employer insurers are not overburdened by any consequences arising from the Federal Court decision but also ensure that seafarers are not disadvantaged in their rights and entitlements.

So we would implore the government to take that advice and convene a meeting of industry. Labor would be happy to work with the government if it chooses to meet with industry to achieve a sensible resolution. We believe that through genuine talks with industry it will be obvious if a particular party is seeking to frustrate the process. Whoever that party is, we would not accept that behaviour, because of the importance of this matter. Therefore we would suggest that through that process there will be a capacity for the government to reconcile the differences within industry, if they are outstanding, and indeed seek to rectify this position. In the conversations I have had with all stakeholders, whilst there are points of difference, the clear view of those stakeholders is that they want this matter resolved, and I do not believe anyone will do anything other than properly and genuinely discuss this matter in order to find a proper settlement for the industry, for the employers and, indeed, for the workforce.

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