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

Angus Taylor (Hume, Liberal Party) Share this | Link to this | Hansard source

I am delighted to speak about the Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 because this bill ensures the continued viability of the Seacare scheme by returning the coverage of the scheme to what it has been commonly understood to be since its commencement in 1993—and dating back, in fact, to 1911 under the Seamen's Compensation Act. Importantly, the bill seeks to ensure that all previous claims lodged under the scheme, between 1993 and now, continue to be valid. These claims are currently at risk as a result of a court decision, and I will come back to that in a moment.

Although I may represent a land locked electorate, as a member of the coalition backbench committee on employment I can assure you that this bill is absolutely necessary to secure the rights of workers to workers compensation. It will return those rights to what they had been widely understood to be by maritime industry regulators and participants prior to the Federal Court's decision in Samson Maritime Pty Ltd v Aucote, the Aucote decision.

The Aucote decision has resulted in a profound shift in workers compensation and work health and safety arrangements in the Australian maritime industry under the Seacare workers compensation scheme. Before the Aucote decision, the Seacare scheme was understood to apply to around 330 ships. Following the decision, the Seacare scheme could cover as many as 11,000 ships—from 330 to 11,000—or even more, with potential retrospective effect going back to 1993.

Where the Commonwealth was responsible for regulating workers compensation and work health and safety for a small proportion of the maritime industry before the decision, it now has responsibility for the vast majority of the industry—from 330 to 11,000 or more. This responsibility cannot be supported from existing resources, as the scheme and its funding were never designed to accommodate such costs. It represents a massive cost shift from the states to the Commonwealth—at a time when of course the Commonwealth cannot afford it—and could require the recouping of insurance fees and money from formerly injured workers going back to 1993, which is something we clearly do not want to see.

The bill therefore seeks to restore the distinction between Commonwealth and state coverage of workers compensation and work health and safety for seafarers that has existed—at least, as we understood it—since 1911. To effectively achieve this, the bill applies to any injury, loss or damage suffered by any employee on or after the commencement of the seafarers act in 1993. Critically, this will ensure that past claims will not be disturbed. The approach ensures that there is certainty as to what a seafarer's appropriate workers compensation rights are and have been. The bill does not seek to change pre-existing workers compensation entitlements and work health and safety protections. The bill is about providing certainty and ensuring that seafarers have proper protections without transferring responsibilities from the states to the Commonwealth and therefore threatening the financial viability of the existing compensation scheme.

Unfortunately, Labor's reckless approach in opposing this bill will see workers worse off. It will lead to great uncertainty about the coverage of work health and safety laws in the industry, and it will mean that there is no safety regulator that is equipped to deal with the size and scale of the sector.

The Seacare scheme has been commonly understood to apply to ships and units engaged in interstate or international trade. Ships and units engaged in intrastate trade—that is, those operating solely or primarily within the coastal waters of a single state—were understood to be covered by state workers compensation and work health and safety laws. This approach to coverage was consistent with the coverage of the Seamen's Compensation Act 1911, which established the Australia's first national workers compensation scheme for seafarers. Based on this understanding, the Seacare scheme applied to approximately 33 employers and 7,516 employees, or 4,721 full-time equivalents, in 2013-14—about 20 per cent of the Australian maritime industry.

Submissions received to the review of the Seacare scheme undertaken by Mr Robin Stewart-Crompton and published in 2013 provide evidence that industry participants had a narrow view of the coverage of the scheme. Everyone thought they knew what this scheme covered and what it did, and the industry was happy with that. The joint submission of the Maritime Union of Australia and the Australian Maritime Officers Union called for coverage of the Seacare scheme to be expanded, demonstrating that those unions were of the view that intrastate trade or commence was not at that time covered by the scheme. So they recognised where it stood at the time.

Approximately 12,000 seafarers who were previously understood to be covered by state workers compensation and work health and safety laws are, in the light of the Aucote decision, covered by the Seacare scheme. Under the seafarers act, employers are required to maintain an insurance policy to cover their liabilities. Failure to comply with this obligation is a criminal offence of strict liability. Employers of seafarers on intrastate voyages would have been acting in good faith on the basis that they were covered by state workers compensation laws and fulfilling obligations under those laws. As a consequence, they would have been and most likely still are maintaining insurance policies, whether private or from the relevant state authority, under the state schemes. In addition to expenses incurred in relation to moving between workers compensation schemes, employers will also incur regulatory costs adjusting to the rights and responsibilities under the OHS(MI) Act.

The bill will address the impact on employers by returning their legislative obligations to what they were understood to have been before the Aucote decision. It will address the potential liability of employers for penalties for not maintaining the correct insurance policy under the scheme and for not providing returns to the Seacare Authority for the purpose of paying the fund levy. The amendments in the bill, which have retrospective effect, will prevent employers being found guilty of these strict liability offences.

The expanded coverage of the scheme impacts on the regulation of safety. Comcare and AMSA are not funded or resourced to immediately take on the role of administering a substantially larger Seacare scheme. As a result of Aucote, state work health and safety regulators do not have the power to continue enforcing state work health and safety laws on ships for intrastate voyages. This lack of enforcement potentially jeopardises safety in a high-risk industry. The decision also raises questions about the validity of enforcement action taken by state work health and safety regulators.

Further, the OHS(MI) Act has not been substantially amended since its enactment in 1993 and now reflects an outdated approach to work health and safety regulation in comparison to the majority of other Australian jurisdictions. The act requires revision to align it with the model work health and safety laws developed by Safe Work Australia. The majority of states and territories have updated their laws to align with the model.

The model work health and safety laws contain several improvements including broader duties of care, broader obligations for worker consultation and representation, graduated measures for securing compliance, positive officer duties and higher criminal penalties for non-compliance.

The Seacare scheme has the highest rate of serious injury of any Australian work health and safety jurisdiction. In the 2011-12 period the Seacare scheme had a serious injury rate of 36.6 serious injuries per 1,000 employees. While this was a reduction on previous years, it is still markedly higher than the national rate of 11.1 per 1,000 or with the performance of other dangerous industries such as: agriculture, 20.9; mining, 17.1; and construction, 17.5. In comparison, the Seacare scheme is at 36.6.

The Aucote decision impacts on seafarers in terms of which workers compensation scheme—Commonwealth, state or territory—covers them. Workers' compensation schemes across Australia vary substantially, making it difficult to assess whether one particular scheme is better or more generous than another.

To determine if an injured seafarer would receive greater benefits under the Seacare scheme, a number of factors need to be considered including: the injured seafarer's wages; their level of impairment; their subjective preferences for weekly compensation payments or a lump sum payment; and their ability to return to work.

In some circumstances, the Seacare scheme does provide more generous benefits to injured workers, in comparison to other Australian workers' compensation schemes. For example, the scheme pays an employee 100 per cent of pre-injury weekly earnings for the first 45 weeks they are unable to work, a high rate and substantially longer period of maximum benefits than most other workers' compensation schemes in Australia.

However, the Seacare scheme's rehabilitation and return to work performance is substantially worse than other Australian workers' compensation schemes. The average durable return to work rate across all Australian workers' compensation schemes for 2013-14 period was 79 per cent, while the Seacare scheme saw only 64 per cent.

Another impact of the Aucote decisions for seafarers is the likelihood of calls on the fund increasing. This is both because there are now more seafarers in the scheme and because previously injured employees could make claims under the scheme for old injuries against an employer that no longer exists or is unable to pay.

We have actuarial advice that the fund contains sufficient money to meet expected future liabilities, although its current levels are based on expected future liabilities for a scheme covering ships which are directly and substantially engaged in interstate and international trade and commerce, not including intrastate. If the fund is depleted, seafarers who are injured will face significant delays in receiving compensation for injuries or may not be able to obtain any compensation at all, so we are faced with a very grave situation and a very grave risk from this massive expansion of the scheme as a result of the Aucote decision.

The bill restores the coverage to how it was understood to be, prior to the Aucote decisions. Employees on intrastate voyages will remain covered by state workers' compensation and work health and safety laws. This is absolutely central to understand. They will still be covered by the state workers' compensation schemes. The bill will ensure the effective regulation of work health and safety by regulators which are resourced to undertake compliance and enforcement action, and it ensures that no seafarer will lose any workers' compensation payments they have received nor will they face a reduction in workers' compensation payments they are receiving By returning the operation of the Seacare scheme to the status quo, the previous understanding, the bill prevents significant funding impacts on regulators and agencies, which are not equipped to deal with those impacts.

One of the effects of the Aucote decisions was to put the validity of paid premiums by employers to state workers' compensation schemes along with claims made to and payments made by those insurance schemes in doubt. Given that payments under state or territory workers' compensation laws are arguably invalid due to the overriding operation of federal workers' compensation law there remains the ability, unless the amendments are made, for claims to also be made under the Seafarers Act and for insurance funds to be drawn on to finance these claims.

The effect of this bill would be to return coverage to what it has always been understood to be thereby preventing claims for past injuries on insurers that they could never have anticipated. The Commonwealth will continue to work with the states and territories to address the validity of past claims made under state or territory workers' compensation schemes. To effectively achieve this, the bill applies to any injury, loss or damage suffered by any employee on or after the commencement of the Seafarers Act in 1993. That will ensure that past claims will not be disturbed and will also ensure that there is certainty as to what a seafarer's appropriate workers' compensation rights are and have been. This bill is about providing certainty and ensuring seafarers have proper protections without transferring responsibilities from the states to the Commonwealth and threatening the financial viability of the existing compensation scheme.

I call on all in this chamber to support the bill and to allow urgent passage through the parliament to ensure that the safety of the workers in the sector is not compromised. Any delay will see chaos in the sector for workers and for regulators.

Alannah Mactiernan (Perth, Australian Labor Party) Share this | Link to this | Hansard source

I would like to contest the fundamental premise that we have heard from the previous speaker—that this is a matter that needs to be urgently rushed through the parliament because we have just recently had a case determined which has created a great deal of uncertainty and therefore we need to act with great haste here, in a way that is quite extraordinary. We are proposing a major change to a superannuation scheme without any consultation with the industry, with the unions or with the affected employees. We are told this is because the Aucote case was decided in December and this problem was revealed. As the government has analysed it, this extends the coverage to say that employees in shipping that is engaged substantially in intrastate trade are also covered by the current Seacare scheme.

It is important to understand that the government have had plenty of notice that this was an issue. Back in May 2014, there was a decision in the Administrative Appeals Tribunal that found very much what was reconfirmed in the Federal Court. So the government had notice more than six months ago that there was this question of interpretation of this piece of legislation. They had ample time to take action to ensure that they brought all parties together—that they brought the government together with the shipping industry and with the affected unions—and worked out a consensus approach. But they did not do that. They sat on their hands for the intervening seven months that this was before the Federal Court and took no action. I think that is not just a case of complacency but it goes to a problem that we see deeply entrenched in this government in many areas of endeavour, and that is an absolute loathing of the tripartite process.

I think I have spoken here before in this House about this. Many economists have analysed why economies like Germany's have done much better than one would have expected in the circumstances, and it is substantially attributed—whether there is a conservative or a progressive government in place in Germany—to a commitment to these tripartite structures. That has enabled Germany to respond with much greater flexibility to a whole variety of economic challenges that it has faced. But what we have here, under the leadership of our Prime Minister, is an intellectually very primitive government that is motivated primarily by an anti-union ideology and is simply unable to do that grown-up thing of bringing all parts of industry together to work through a process. From my experience of dealing with maritime unions, if you adopt that approach, if you bring them onto a platform with industry and all the players, you can achieve progress.

First of all, the case that has been made by the government that this is a matter of urgency that needs to be dealt with now is disingenuous, because they had a good seven months notice prior to the decision of the full court of the Federal Court that this was an issue in play. Indeed, even given that they did nothing, there is no reason now why we cannot take that approach—get all the players together and negotiate some outcomes here. The government claim—a point that was made by the government's lead speaker on this matter—that we still have uncertainty. Now whether or not a ship is engaged 'directly and substantially' in interstate or international shipping becomes the defining point at which a vessel comes under the seafarers act. That is itself not going to be very clear. In the Western Australian case, where we have traditionally had—and no doubt we will once again have, when we have Labor governments back in—coastal shipping routes—

Melissa Price (Durack, Liberal Party) Share this | Link to this | Hansard source

Ha! I look forward to that!

Alannah Mactiernan (Perth, Australian Labor Party) Share this | Link to this | Hansard source

That is right. That was when we had enlightened governments in Western Australia that recognised the importance of this for regional WA. But a traditional coastal shipping company service running through the coastal ports of WA would often go into the Northern Territory. You could argue that that is 'directly' engaged in interstate—even though it is a territory—trade, but is it 'substantially' engaged in interstate trade if, for example, five of the ports that it goes to are Western Australian ports and it goes on to one port in the Northern Territory? It might cross the threshold for 'directly', but does it cross the threshold for 'substantially'? Suggesting that this rushed bill, with its 'directly and substantially' provision, is going to provide clarity is not a no-brainer. There is still real uncertainty.

There has also got to be some logic about whether or not this is a good system. We have the government coming in here very often talking about the need for national consistency, the need for there to be a clear pathway. Many of the coastal shipping activities in Western Australia, for example, are involved in the offshore oil and gas industry—both exploration and actual offshore oil and gas production. So we have rig tenders, which service both the exploration and the drilling rigs; seismic vessels; and exploration vessels. And, of course, when FLNG commences, there will be vessels going and servicing those facilities.

It is a very interesting delineation because we know that, for example, if we look at the Torosa field in the Browse Basin, that was considered up until a few months ago—and I think passing through this parliament—to be out of state waters and in Commonwealth waters, so it would have been covered by the seafarers act. But due to some detailed surveying of the land, we found what had been mislabelled as the 'golden rocks'. These golden rocks meant that the Torosa retention lease actually turns out to be substantially in WA coastal waters, and these are a series of rocks no bigger than a large table that have changed the boundary of Commonwealth and state waters. So, a vessel might be going out to deal with the Browse Basin—doing exploration in the Browse Basin—and one day it would have been considered to have been in Commonwealth waters, and now it is considered to be in WA waters.

Suddenly, if the Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 passes, we find that the sets of circumstances that regulate the long-term welfare, compensation and entitlements of the respective seafarers will change. That seems to me to be quite implausible. You might have, for example, someone taking the ship out to the Prelude—taking a vessel out from Broome to the Prelude lease—and they will be on one set of formulations and the same person, doing exactly the same work, if the next time around they are rostered on a vessel that is going out to that part of the Browse Basin, to the Torosa lease, for example, will have a very different compensation regime. That does not seem to be very sensible to me. It does not seem to be in keeping with the sort of logic that we often use to argue that we need to have a consistent set of workplace practices and workplace arrangements across similar circumstances.

As I say, an increasing amount of the coastal shipping in WA is servicing the offshore oil and gas industry, and this is going to create a really quite bizarre situation of the same people, depending on what ship they are rostered on for a particular timeslot, having very, very different workers compensation entitlements. There is no case for this bill to be rushed through. It is important to ensure that we have some certainty and clarity, but this is something that needs to be properly worked out through a tripartite process taking in to account all these myriad factors. It should not be something that is rushed through because of an ideological inability for this government to participate in tripartite forums.

Melissa Price (Durack, Liberal Party) Share this | Link to this | Hansard source

I am pleased to continue the conversation about my electorate of Durack. I too rise to support Amendments to the Seafarers Safety, Rehabilitation and Compensation Bill 2015. The electorate of Durack hosts some of the busiest ports in Australia, including Port Hedland, Dampier, Karratha and Geraldton, and all seafaring matters are of paramount importance to my constituents, as they are to me.

The bill relates to workers compensation claims made under the seafarers act dating back to 1993. The amendments will ensure confidence in these past claims; the technical amendments to the bill will provide certainty that these past workers compensation claims are not disturbed. The amendments that we are debating will serve to rectify and clarify. The legislation will ensure that the seafarers act and the relevant OH&S act actually align with the historical understanding of aspects of the act.

By way of background, this legislation arises from a Federal Court decision in the Samson Maritime Pty Ltd v Aucote which resulted in a substantial shift in workers compensation and work health and safety arrangements in the Australian maritime industry. This bill will ensure the continued viability of the Seacare scheme by reinstating the coverage of the scheme to what it has been commonly understood to be since its commencement in 1993. Importantly, this bill seeks to ensure that all previous claims lodged under the scheme, between 1993 to now, continue to be valid. In addition, the bill seeks to restore the distinction between Commonwealth and state coverage of workers compensation and work health and safety for seafarers that has existed since 1911.

It is worth underlining the point that this bill does not seek to change pre-existing workers compensation entitlements and the work health and safety protections of seafarers. This bill addresses the impact on employers by returning their legislative obligations to what they had been understood to be. Additionally, this bill addresses the potential liability of employers for penalties for not maintaining the correct insurance policy under the scheme and for not providing returns to the Seacare Authority for the purpose of paying the fund levy.

There is an urgent need for this bill to be passed by the parliament, to provide clarity and certainty. Without this legislation there will continue to be uncertainty about the coverage of work health and safety laws, and it will mean that there is no safety regulator in the industry equipped to deal with the size and scale of this very large and important sector.

Workers compensation schemes across Australia vary substantially making it difficult to assess whether one particular scheme is better, or more generous, than another. In some circumstances, the Seacare scheme does provide more generous benefits to injured workers in comparison to other Australian workers compensation schemes. The Administrative Appeals Tribunal held the view that work which was preparatory or incidental to interstate or international trade or commerce was considered to be covered by the Seacare scheme. The Federal Court has subsequently upheld this view and declared that:

1. The Seacare scheme applies to all seafarers employed by a trading, financial or foreign corporation on a prescribed ship and;

2. To operators of prescribed ships that are a trading, financial or foreign corporation.

The majority of employers and operators within the maritime industry are either trading or foreign corporations. As such, the practical consequences of this broad interpretation are that the Seacare scheme extends to the majority of the Australian maritime industry, including ships and units which primarily operate within a single state. This decision is at odds with the convention that state workers compensation and work health and safety laws cover ships operating within a single state.

Employers of seafarers on intrastate voyages would have been acting in good faith on the basis that they were covered by state workers compensation laws and fulfilling obligations under those laws. As a consequence, they would have been—and most likely still are—maintaining insurance policies under state schemes. Importantly, this bill only seeks to ensure that the scheme operates as it was intended with retrospective effect. The government is seeking to define the coverage to what it has been in practice under successive governments starting with the Keating government through to the second Rudd government. It is disappointing that Labor is opposing this legislation.

It was worth noting that the honourable Senator Eric Abetz, the Minister for Employment, has announced that the government will shortly be bringing forward a bill to make further reforms to the Seacare scheme arising from the Stewart-Crompton review. The government is giving urgent but careful consideration to the recommendations of that review of the Seacare scheme, including those to clarify the coverage of the scheme. Decisions on future reforms to the Seacare scheme will be considered in due course. Significantly, the government will consult with all industry participants on the nature of the reforms.

When participating in debates, I like to reflect on my electorate of Durack. It has the busiest ports in Australia, with mountains of grain, tonnes of iron ore, gas and raw materials hammering through those ports. The Mission to Seafarers has provided an invaluable and historical service in the Durack ports of Port Hedland, Dampier, Port Walcott and Geraldton.

The Mission to Seafarers is a worldwide agency of the Anglican Church which cares for seafarers of all nationalities and creeds. As a Christian ministry, the mission is actively involved in service within the seafaring community and operates in some 300 ports around the world and 23 in Australia with a network of chaplains, lay staff and volunteers who offer seafarers a warm welcome, friendship, and practical and spiritual help. Their symbolic 'flying angel' flag is well recognised and is a very welcoming sight to visiting seafarers.

The current seafaring centres of Durack—in Hedland, Dampier and Geraldton—provide an atmosphere of family and a sense of service and solidarity .Over the years, the mission has sought to help seafarers in all kinds of practical ways. Remember: seafarers are far away from their families for long periods and may face loneliness, ill health or injury. The welcome from the Seafarers' chaplains and volunteers may be the only onshore hospitality they receive.

This week, on Sunday, 29 March, the Mission to Seafarers Geraldton will be opening their doors for a community event. The mission is housed in beautiful heritage premises—one of three of the oldest standing buildings in the seaside city of Geraldton, dating from the earliest days of the Champion Bay settlement, having been built as a school. It served as a church, police lock-up, loco shed and hayshed before it became home to the Mission to Seamen—now Seafarers—in 1938 when the mission first commenced in Geraldton. A priest was sent from England to be both rector of the new Bluff Point Parish and chaplain in the port. The Geraldton mission has been staffed continuously since March 1938.

Around 500 ships call into Geraldton port each year, which sees 6,000 seafarers visit the Geraldton centre each year, where they are welcomed by Reverend Bill Ross, the chaplain, and his wife Jocelyn. Seafarers Geraldton is a favourite sea haven with testimonials from ships' captains of appreciation of service and value to seafarers wanting to contact family, purchase personal items, and spend time on terra firma or those seeking social and spiritual counsel. Reverend Ross has been honorary chaplain at Geraldton Seafarers since 2010, having spent close to 40 years in the missions in the Durack centres of Dampier, Port Walcott, Wickham, Port Hedland and now Geraldton.

Debate on the seafarers bill—I am very pleased to say—has given me the opportunity to acknowledge the tireless work of Reverend Bill Ross, his wife Jocelyn and the irreplaceable service of the Seafarers Mission in Geraldton and throughout Durack.

In conclusion, this bill restores the coverage of the Seacare scheme to how it has been understood to be, prior to the Aucote decision: employees on intrastate voyages will remain covered by state workers compensation and work health and safety laws.

The bill ensures that no seafarer will lose any workers compensation payments they have received or face a reduction in workers compensation payments they are receiving. I state again: this bill does not seek to change pre-existing entitlements and protections of seafarers; it is about providing certainty and ensuring seafarers have proper protections without transferring responsibilities from the states to the Commonwealth and threatening the financial viability of the existing compensation scheme.

I support the urgent passage of this legislation through the parliament to ensure that the safety of the workers in the sector is not compromised. I commend the bill to the House.

Anthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Infrastructure and Transport) Share this | Link to this | Hansard source

I rise to oppose the Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015. This legislation is an ill-thought out response to uncertainty in the shipping industry caused by a Federal Court decision.

The seafarers act establishes a privately underwritten workers compensation scheme, the Seacare scheme. This bill seeks to amend the legislation to clarify uncertainty relating to the scheme that was created by that Federal Court case. In that case, the court held that the Seafarers Rehabilitation and Compensation Act 1992 extended to cover all employees on all registered ships, if they were owned by an Australian trading corporation, an Australian financial corporation or a freight corporation no matter where they were trading or what business they were conducting.

The bill asserts that only seafarers engaged in interstate trade and commerce should be covered by the Seacare scheme. It is based on the view that the scheme should not apply to employees engaged on ships undertaking intrastate voyages who are covered by state and territory workers compensation and workplace health and safety arrangements. The bill also makes technical changes to ensure that where seafarers are covered by state or territory legislation their employers will not be liable to pay any levies to the Seacare scheme.

The opposition do not support this scheme because we are concerned that it will reduce protections for workers. The government claims that the proposed changes deliver on what it describes as a shared understanding of the effects of the existing legislation within the sector. However, there is no shared understanding. As the Administrative Appeals Tribunal and Federal Court decisions indicate, it was never intended that the seafarers act should cover only a very limited group of seafarers. The passage of this bill would mean that some workers whose workers compensation and health and safety arrangements are covered by Seacare would instead be covered by state and territory arrangements.

The key reason I cannot support this bill is that some state and territory arrangements are weaker than those in place under Seacare. So this bill could mean that some workers will be worse off, and that is the bottom line and the concern that the opposition have. We do not trust those opposite when it comes to workers entitlements because we know that, at their heart, they support Work Choices and when it comes to the maritime sector, of course, they have a policy of supporting Work Choices on water, undermining conditions that have existed that are in the national interest.

It is curious that the government claims that this legislation represents a shared understanding of the seafarers act. A shared understanding is usually the result of shared deliberations, consultation and respectful debate, but as far as I know key employer and employee groups were not consulted over this legislation. It is typical of the way that this government respond on these sorts of issues. If the Federal Court and the AAT decisions have created uncertainty about the legal situation in relation to Seacare, those opposite should actually sit down and talk with those people who are affected. That is just good practice and common courtesy let alone good governance. But from those opposite, they seize any opportunity that there is to undermine existing working conditions.

The Deputy Prime Minister and Minister for Infrastructure and Regional Development has made it clear on a number of occasions that he is opposed to the maritime reforms that were put in place by the former government. These reforms were comprehensive when it came to revitalising the Australian shipping industry. The act that was replaced, the Navigation Act 1912, gives a bit of a hint as to the problems that were there—100-year-old legislation with provisions that were out of date, many of which applied to the conditions available for people in the maritime sector. We had a parliamentary inquiry that was unanimous. We then had a consultative process with industry, unions, the sector—organisations like Shipping Australia, the Australian Shipowners Association and individual companies like Rio Tinto were all engaged in the process—as well as the full range of departments.

It came up with a comprehensive plan, essentially that a permit system would continue, requiring people who wanted to move goods domestically around our coast to first ask if an Australian ship was available to undertake such a task on a competitive basis. Not a protectionist model at all but one at least that acknowledged that there was an Australian shipping industry; and, where they cannot engage an Australian flagged vessel, a foreign flagged vessel could operate. But of course like other industries in the transport sector, it would have to pay Australian level wages—not an unreasonable request, one would have thought.

It had an international shipping register with tax breaks for Australian shippers and seafarers, and of course improved training opportunities for the maritime workforce—one of the first things that the government cut. This arose out of a workforce advisory group that made unanimous recommendations to the government. It included representatives of the shipping industry, the maritime unions, the Australian Navy and those who use the Australian shipping industry. It made recommendations about making sure that we had a skills base for the future. What did the new government do? When it came in that was one of the first things that it cut.

Yesterday, in this chamber we paid tribute to former Prime Minister Malcolm Fraser. One of Malcolm Fraser's great legacies is the Australian Maritime College in Launceston, a world renowned institution. Yet this government does not seem to understand the importance of those skills. The government goes back to talking about protectionism, but the truth is that our arrangements are amongst the most open in the world. There is certainly no country in the industrialised world that has more open arrangements than Australia. In the US, under the Jones Act, a ship carrying cargo around the domestic coast of the United States not only has to be US flagged and staffed by US mariners but also has to be built in the US. That is the protectionist model, not what was being implemented here.

And why is an Australian shipping industry in the national interest? Firstly, it is critical for our national economy when some 99 per cent of our exports are carried by ship. It means jobs for Australians and opportunities for business. Once an Australian shipping industry ceases to exist, which is the model those opposite seem to want, then of course costs will increase, because there will not be Australian competition in the sector. In terms of jobs, there are the skills that are required for Australian based shipping—people to be the harbour masters, run the ports and be engaged in the maritime sector on what is an island continent. Secondly, there is the environment. Having Australians onboard who understand our waters on the blue highway reduces the possibility of accidents such as the 2010 grounding of the Shen Neng 1, which tore a three-kilometre gash through the Great Barrier Reef. None of the major maritime accidents off our coast in recent years involved an Australian flagged vessel. Thirdly, there is national security. For those who talk about national security and border protection, the idea that we would not have any merchant fleet with the Australian flag on the back of it, on an island continent such as ours, flies in the face of the rhetoric of those opposite regarding border security. We know that the merchant fleet plays an important role in that area. Lastly, the interrelationship between the nation's naval and merchant fleet is also very important in terms of skills and in terms of the national interest. That is why countries like the US intervene in the way that they do. They understand that connection.

The Minister for Infrastructure, the Deputy Prime Minister, wants to dismantle all the arrangements. On 8 October 2013 he told a PACSHIP conference:

To put it bluntly, there is no point in artificially propping up our coastal shipping industry if it is unable to compete - it will have an impact on the broader economy.

That is an extraordinary proposition for an Australian minister to make. And Australian based industry is not asking for any special favours. They are actually just asking for a level playing field. The idea that you can pay Third World wages on a ship going from Sydney to Melbourne and have Third World conditions is no different from the idea that you can do that on a truck going down the Hume Highway from Sydney to Melbourne, with all the consequences for safety and for the national interest that that would present. Yet for the government, somehow the blue highway is different from the bitumen highway.

Well, we on this side of the chamber will defend the fact that there is a national interest in having Australian workers on Australian ships with the Australian flag on the back. And this is nothing to do with their absurd proposition of bagging anything to do with the MUA. And it is not just the opposition saying this. Earlier this year the owner of Cairns based tourism venture Coral Princess Cruises, Tony Briggs, was forced to sell his business to foreign interests because he could not compete with a Bermuda flagged vessel that began operating in competition. He said that changes that this government had flagged would make matters worse and damage Australian businesses. Indeed, he said that they were already damaging Australian businesses because of the uncertainty that was being created. So, this legislation before the House is about uncertainty. They were prepared to undermine existing conditions of workers on the basis of uncertainty, but they are creating uncertainty throughout the industry. This is what Mr Briggs, a businessman based in Cairns, said:

There will never be another passenger ship built in Australia if there is no certainty on how we can operate. It's exporting jobs.

Mr Briggs noted that foreign flagged vessels are at a huge advantage over Australian flagged vessels, because they are not bound by Australian regulations on wages, occupational health and safety or industrial relations. Mr Briggs also noted that 'the main thing is they don't have to pay tax'.

So, this is very much against the national interest. This is a government that is lazy when it comes to doing hard policy formulation. It falls back to its prejudices, whereby it has never seen a member of a union that it did not want to attack. And it does not understand that its role is actually to speak out and to legislate in the national interest. That is why we are urging members of this House to reject this legislation and tell the minister to go back to the drawing board—do some consultations and come back when you have a bill that addresses the issues rather than this minister's ideology.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

The Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 concerns the compensation scheme that exists for seafarers and that concerns the maritime sector, Seacare. It arises because of a full court decision of the Federal Court that said that someone was eligible for this scheme, upholding a decision of the AAT, when, according to the government, players in the industry had assumed that such a person would not be eligible. In other words, the full court decision has now said that there are people who are covered by this scheme who up until now people did not think were covered by it.

If you accept that argument at face value, you really have two choices. There are two things you can do if you are a government that is caught on the hop by a full Federal Court decision. One, which would be the sensible one, would be to say to everyone in the industry, 'Well, no-one expected this; let's all sit down around the table and work it out.' Maybe some people did expect it, and maybe others did not. Let us involve the people who represent the workers. Let us involve the employers, and let us involve the state governments, because the effect of this decision is that it alters the balance as to who is covered between state government compensation schemes and the federal scheme. Through that process you could also sit down and work out what it will mean for the various standards of compensation and care around the country if this ruling is upheld. Conversely, if we proceed with some legislation to have a level playing field that 'harmonises' the industry, will that potentially result in some people now having a lesser standard of care and compensation?

Anyone who is familiar with the differences that exist at the federal and state levels between various health and safety and compensation schemes knows that the idea of harmonising something is easier said than done. The idea of reaching a national standard is something that is easier said than done. Because what you have to do is go through each of the various state schemes and work out questions like access to the scheme, the level of safety that is required, and then, of course, the compensation that follows should someone get injured—and then assess it from each state or territory against the national scheme. That would be one way to go. And, indeed, it is a way that previous governments have gone. Whatever our position as the Greens has been on a final vote on that legislation, what cannot be denied is that before bringing such legislation to parliament a very comprehensive process of reviews and discussions took place. That is one way you can address the problem of a so-called unexpected full court decision—although of course some might say that the decision was not unexpected at all.

The other alternative is to do what this government has done, and say, 'Have we got a bill for you! Let us fix it. Just trust us. Here is a bill we want you to deal with very quickly that is going to introduce a uniform set of national standards,' and then attempt to get it through the parliament as quickly as you possibly can without talking to the stakeholders about it at all. Of course, that is what this government has done. That should come as no surprise. If the government paid attention to the Senate inquiry into this bill, one of the things it would have seen is that, apart from the department's submission, every submission to this bill raised serious questions about its operation. The call was made very strongly by the Senate committee that inquired into it, as well as by a number of the parties lodging submissions to the inquiry, to say, 'What is the urgency? There is no immediate problem that needs to be addressed by this bill such that it needs to be rushed through this parliament in this sitting fortnight. This bill, like every other piece legislation, could go through the usual consultation process.' But, notwithstanding the fact that that is what the Senate committee said, and notwithstanding that the department was the only one making submissions to the inquiry that did not suggest that there serious problems with this bill. Notwithstanding all that, the government comes back here and says, 'We have to rush this through quickly.'

That, in many ways, ought to come as no surprise when you look at this government's record on other matters relating to compensation and health and safety for people in the Commonwealth scheme. I can see that they are like a bull at a gate on that. Looking at other industrial relations legislation from this government you can see that in bills that have, thankfully, not yet passed this parliament the government is wanting workers to be able to trade off non-monetary benefits for things like penalty rates. In other words, if you have to work in the fish and chip shop, the fish and chip shop owner can say, 'I want to pay you a hamburger every lunch,' and take that into account when assessing your wage. That is the kind of approach this government thinks is all right. In that context, I think we are right to be very sceptical of the government's desire to rush this bill through.

On current suggestions, it looks like it will pass this House, but I hope that when it reaches the Senate scrutiny is brought to bear on this government's desire to push through changes to a compensation scheme without any consultation with the industry players. For that reason, the Greens will not be supporting this bill, either here or in the other place, and I hope the government hears the submissions and hears the will of the people in the industry and the various stakeholders, and the government just does what good governments should do, which is to go back and talk to the people who are affected and then come back to this parliament after you have done that.

Luke Hartsuyker (Cowper, National Party, Assistant Minister for Employment) Share this | Link to this | Hansard source

I thank all members for their contributions to this debate. The Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 only seeks to deal with the Aucote decision and to provide an interim solution to protect historic claims under the Seacare Scheme, and to provide certainty for industry participants in the short term until more comprehensive reforms can be brought forward. The bill will ensure that no injured worker who has made a claim prior to the introduction of the bill, including Mr Aucote, will have his claim disturbed. At present, the court's decision means there is a risk that any workers compensation payments made under state schemes could be void and be required to be paid back.

The bill ensures the continued viability of the Commonwealth's Seacare Scheme, and restores certainty about the coverage of that scheme for all participants, including seafarers and their representatives, employers, insurers and regulators. It does this by returning the coverage of the Seacare Scheme to what it has been commonly understood to be by participants since its commencement in 1993 and dating back to 1911 under the Seamen's Compensation Act. While I recognise there is an historical disagreement regarding the coverage of the Seacare Scheme, the government is simply seeking to legislate what has been the scope of the scheme prior to the Aucote decision. This is confirmed by evidence presented to the Senate committee by Mr David Sterrett, Chairperson of the Seacare Authority, who said:

It is important to differentiate between the varying claims that have been made about the coverage of the Seacare Scheme during the life of the scheme and the way in which the scheme has operated since its inception.

Notwithstanding the various claims, the proposed bill will restore coverage to that in which the scheme has operated since its inception. There is no doubt that the introduction of the bill has provided an opportunity for various parties to once again ventilate their differing views as to what coverage they would like to see. However, the bill is only intended to counteract the effect of the recent judgement, not create a new interpretation.

The Federal Court's decision in Samson Maritime Ltd versus Aucote has resulted in a profound shift in workers' compensation and work health and safety arrangements in the Australian maritime industry. Before the Aucote decision, the Seacare Scheme was understood to apply to about 300—

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, and the minister will have leave to continue his remarks at that time.