Wednesday, 25 March 2015
Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015; Second Reading
I table a revised explanatory memorandum relating to the bill and move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
SEAFARERS REHABILITATION AND COMPENSATION AND OTHER LEGISLATION AMENDMENT BILL 2015
This bill will amend the Seafarers Rehabilitation and Compensation Act 1992 and the Occupational Health and Safety (Maritime Industry) Act 1993 to restore certainty to maritime industry employers, employees, regulators and insurers by clarifying the coverage of those acts.
The amendments are made in response to the Full Federal Court decision in Samson Maritime Pty Ltd v Aucote and the original Administrative Appeals Tribunal decision of Aucote and Samson Maritime Pty Ltd. The decisions interpreted the coverage of the seafarers act as being beyond what it had widely been understood to be by including within its scope intrastate trade or commerce. The decisions also have potential implications for the OHS (MI) act, since it has near identical coverage provisions to the seafarers act.
To be clear, this bill will simply be clarifying the coverage of the seafarers and OHS (MI) acts to ensure that it represents what has been widely understood to be the case since those acts commenced.
The Commonwealth Government has provided a workers' compensation scheme to protect Australian seafarers and their families against the financial impacts of death, injury or illness resulting from the often dangerous conditions of working on the sea since the Seamen's Compensation Act 1911. That act applied broadly to Australian seafarers who were engaged in interstate or international trade or commerce, or engaged in trade or commerce within or between the territories. This reflected the understanding of the limits of the Commonwealth Government's constitutional powers at the time.
The seafarers act commenced in 1993. It provides workers' compensation and rehabilitation arrangements for seafarers in a defined part of the Australian maritime industry. The seafarers act also establishes the seafarers Safety, Rehabilitation and Compensation Authority (the Seacare Authority), which oversees the Seacare scheme. The OHS (MI) act commenced in 1994. It provides work health and safety regulation for a defined part of the Australian maritime industry. The two acts together form the legislative basis of the current Seacare Scheme.
Since the seafarers act and OHS (MI) act commenced, successive governments and maritime industry employers, unions and regulators have operated on the basis that the Seacare scheme generally covers the employment of employees on prescribed ships engaged in interstate or international trade or commerce. Seafarers employed on ships engaged in trade or commerce within a single state were considered to be covered by the workers' compensation and work health and safety laws of the state in which they work.
The Full Court's decision has in effect produced uncertainty by moving a large number of maritime industry employers and employees out of the coverage by state and territory workers' compensation and work health and safety schemes into the coverage of the Commonwealth Government's Seacare scheme.
This bill amends the coverage provisions of both the seafarers act and the OHS (MI) act to ensure that coverage aligns with how the Seacare scheme had been understood to apply. The amendments will clearly provide that the seafarers act and the OHS (MI) act do not apply to ships engaged in purely intra-state trade or commerce. This will provide ongoing clarity and certainty for maritime regulators, employers and employees on the coverage of the Seacare scheme.
The amendments will apply retrospectively to any injury, loss or damage suffered by any employee on or after the commencement of the seafarers act in 1993 in order to return the operation of the Seacare Scheme to what it has always been understood to be.
The approach ensures that past claims are not disturbed and that there is certainty as to what a seafarer's appropriate workers compensation coverage is and has been. The key aim is to restore the 'status quo' regarding workers' compensation and work health and safety coverage of the maritime industry.
The bill also amends the coverage provisions to ensure that the Seacare scheme applies to the employment of employees on a prescribed ship, or unit in the case of the OHS (MI) act, that is 'directly and substantially' engaged in 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. To be covered, there must be a direct and substantial connection.
This bill also makes amendments to the seafarers act to ensure that when the Seacare Authority grants an exemption from the act in relation to an employee's employment, the relevant employer is also exempt from paying a levy under the Seafarers Rehabilitation and Compensation Levy Collection Act 1992. This amendment addresses a long-standing anomaly where employers have been required to pay a Seacare levy on behalf of a group of employees who, by virtue of being granted an exemption from coverage by the seafarers act, are not covered by the Seacare scheme.
This bill does not change the workers' compensation entitlements and work health and safety protections of seafarers. The bill restores the balance of Commonwealth and state coverage of workers' compensation and work health and safety for seafarers that existed since the Seamen's Compensation Act 1911.
With passage of this bill, seafarers will have the workers' compensation rights and work health and safety protections that they were widely understood to have had prior to the handing down of the Full Court's decision.
Ordered that further consideration of the second reading of this bill be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.