THE Seacare scheme will remain but be subject to a raft of changes under a new Bill introduced to parliament this month.

The federal government tabled the Seafarers and Other Legislation Amendment Bill 2016 on 13 October 2016, debate on which has been adjourned.

The Bill is part of a package of three Bills that includes the Seafarers Safety and Compensation Levies Bill 2016 and the Seafarers Safety and Compensation Levies Collection Bill 2016.

The Seacare scheme is currently made up of the Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act) and the Occupational Health & Safety (Maritime Industry) Act 1993.

The new Bill, if passed, would:

• Introduce a new test to clarify coverage of the Seafarers Act;
• Repeal the OHS(MI) Act and extend coverage of the Work Health and Safety Act 2011 to vessels covered by the Seafarers Act;
• Update the workers’ compensation provisions in the Seafarers Act to restore alignment with broader Commonwealth workers’ compensation laws; and
• Give effect to recent changes to the Maritime Labour Convention and make minor amendments to broader Commonwealth workers’ compensation and work health and safety laws.

According to the Explanatory Memorandum (EM) to the Bill:

“The Seacare Review recommended that the model WHS laws should be specifically adapted for the maritime industry … Retaining industry-specific WHS legislation covering the sector of the maritime industry covered by the scheme is no longer necessary. The sector is not so significantly different from other industries which fall under generally applying Commonwealth, state or territory WHS laws as to justify the continuation of separate WHS arrangements.”

Regulation and coverage of the new scheme

While the new Bill does not plan to abolish the Seacare scheme itself, it does seek to abolish the Seacare Authority and transfer governance of the scheme to the Safety, Rehabilitation and Compensation Commission (SRCC).

In particular, the Bill seeks to insert new provisions into the Seafarers Act to clarify coverage of the Seacare scheme while maintaining a similar scope to that which it currently has.

According to the EM, the current provisions of the Seafarers Act and the OHS(MI) Act ‘cause significant uncertainty for employers, employees and the scheme’s regulators’.

The EM notes that the Aucote Federal Court decision in 2014 significantly expanded coverage of the scheme but, even before that, there was ‘considerable practical difficulty determining coverage’.

“Vessels can move in and out of coverage from voyage to voyage,” the EM says. “This means vessels need to have insurance cover to meet the state or territory and the national law.”

The changing profile of vessels operating around Australia from predominantly coastal and international shipping to an increasing number of vessels involved in the offshore oil and gas sector has added to this complexity in coverage, the EM says.

The Bill’s proposed new coverage test is two-tiered and removes the need to refer to the now repealed Navigation Act 1912, incorporating relevant definitions into the Seafarers Act.

Work health and safety

Under the Bill, the OHS(MI) Act would be repealed and the Work Health and Safety Act extended to apply to the Seacare scheme with some sector-specific amendments including:

• Technical amendments to s12 of the WHS Act to clarify the WHS Act applies to ‘upstream duty holders’ where the activity gives rise to a potential risk to workers cover by the WHS Act;
• Removing the requirement on businesses to provide Comcare with an up to date list of HSRs;
• Replacing the reference to giving ‘directions’ in a Provisional Improvement Notice with giving ‘recommendations’; and
• Clarifying that judges and heads of mission are not ‘officers’ for the purpose of the WHS Act.

To see the Bill and its Explanatory Memorandum, click here.

For further information about the Bill or to provide feedback on its implications, please contact AREEA’s principal adviser – workplace policy, Lisa Matthews, on (03) 6270 2256 or at [email protected].