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1998
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
EXPLANATORY
MEMORANDUM
(Circulated by Authority of the
Minister for Transport and Regional Services,
the Honourable John Anderson
MP)
ISBN: 0642 387443
Navigation Amendment (Employment of Seafarers) Bill 1998
OUTLINE
The Navigation Act 1912 (the Act) provides the legislative basis for
regulating ship safety, and environmental protection, and also includes
provisions related to the coasting trade, seafarers’ employment and
qualifications, and salvage.
The Navigation Amendment (Employment of
Seafarers) Bill 1998 (the Bill) will amend the employment related provisions in
the Act so as to avoid inconsistencies with the Workplace Relations Act
1996 (WR Act) and the concept of company employment for all seafarers
serving in the Australian shipping industry.
Under company employment the terms and conditions applying to seafarers are matters for negotiation between the seafarers and their employers. Legislative backing for such arrangements, which can be tailored to the needs of individual companies, can be obtained through the WR Act.
In summary, the Bill will repeal provisions dealing with:
• the Marine Council and its functions;
• prohibition on demanding or receiving fees for the supply of seamen;
• prohibition on using the crew of a ship engaged in overseas voyages for handling cargo or ballast while the ship is in an Australian port;
• requirements to enter into a prescribed form of ‘articles of
agreement’ covering conditions of employment; and
• certain
procedures for the discharge of seamen from service on a ship and methods for
paying their wages. However, sections 83, 85, 91 and 94 dealing with rights of
masters and seamen in respect of claims for wages and repatriation to their home
port if the ship on which they are serving is lost or wrecked, or the owner goes
bankrupt during a voyage, are being retained.
The Marine Council
comprises an employee of the Australian Maritime Safety Authority, and
representatives of shipowners and seafarers. Its main functions have been to
deal with issues concerning the suitability of seafarers for employment at sea
and standards of accommodation. Under company employment it is the
responsibility of the employer to determine these matters and there is no need
for a Government appointed body to perform such tasks.
The Bill repeals
about fifty sections and subsections in the Act containing detailed employment
related provisions. In addition, there are a number of other consequential
amendments in the Bill which are required as a result of the provisions to be
repealed and the need to broaden the concept of an employment agreement so as to
provide the flexibility allowed for under the WR Act. The revised definition of
an agreement in the context of the Navigation Act is referred to in sections
6(1) and 6(8).
FINANCIAL IMPACT STATEMENT
While the amendments will enhance the
operation of the Act, they will have no significant impact on Commonwealth
revenues or outgoings. In respect of industry, the removal of the legislative
requirements covered by the amending Bill will reduce the cost of complying with
Government regulation.
REGULATION IMPACT STATEMENT
1. Problem
The main problem arises from the fact that the
Navigation Act includes a large number of provisions covering the employment of
seamen, which are inconsistent with the aims of the WR Act. The main difference
between the Navigation Act and the WR Act, is that the Navigation Act is highly
prescriptive and applies industry wide, whereas the WR Act provides flexibility
for employment arrangements to be determined at the enterprise level in a manner
that suits the business of individual employers.
The Navigation Act has
its origins in the British Merchant Shipping Act of 1894. Originally covering a
large number of matters dealing with merchant shipping, its function today is
largely to provide the legislation framework for the protection of safety of
life at sea, control of ship-sourced pollution and the participation of ships in
Australia's coasting trade.
The employment related provisions in the
Navigation Act (the Act) were developed principally to deal with a situation
where the majority of seafarers were employed on a casual basis for service on a
particular ship for a particular voyage. The situation today is that masters
and ships’ officers are engaged under company employment arrangements and
moves are in hand to bring other seafarers under similar arrangements.
Examples of the over-prescriptive employment conditions in the Act, which are no longer appropriate, include:
• over thirty separate provisions prescribing details of how seafarers are to be engaged and discharged from individual ships;
• over thirty five provisions prescribing how wages are to be paid to
seafarers; and
• an industry wide arrangement, through the Marine
Council, for assessing the suitability of seafarers for employment in the
industry.
2. Objectives
The Government’s prime objective is to update
the Act to bring it into line with practices that are relevant to the operation
of a modern and efficient shipping industry. This is being achieved through a
two-stage review of the Act. Stage 1, which is to be implemented through the
Navigation Amendment (Employment of Seafarers) Bill 1998, is aimed at removing
employment-related provisions in the Act that are inconsistent with the WR Act
and the concept of company employment. Stage 2 will involve a comprehensive
rewrite of the Act to make it a more efficient regulatory tool.
Other related objectives of the Stage 1 amendments are to:
• remove outdated and inappropriate legislative requirements;
• as far as practicable, bring legislation applying to seafarers into
line with that applying to employees in other industries; and
• reduce
costs of administering and complying with legislation.
3. Options
Implementation of the amendments in the Bill is the only
effective option available to remove inconsistencies between the prescriptive
employment legislation in the Navigation Act and the flexible arrangements
available under the WR Act. The WR Act provides the flexibility needed for the
effective implementation of employment arrangements that best meet the needs of
individual enterprises.
While the Bill calls for the repeal of many
employment related provisions in the Navigation Act, parties involved in the
shipping industry in Australia will still have the option of seeking legislative
backing for their employment agreements through the mechanisms available under
the WR Act.
4. Impact
The main impact of the stage 1 amendments will be to
reduce the extent of prescriptive regulation applying to ship owners/operators,
seafarers and the Australian Maritime Safety Authority (AMSA).
The
changes will also bring relevant legislation into line with present day
employment arrangements and encourage employers and employees to negotiate
company employment arrangements that best suit particular situations.
The
abolition of the Marine Council and the removal of prescriptive requirements
associated with the traditional articles of agreement will reduce administrative
costs for AMSA and shipping companies.
5. Consultation
The Minister for Workplace Relations and Small
Business, the Honourable Peter Reith MP, announced on 18 December 1997 that the
Government would actively pursue the implementation of company employment in the
Australian shipping industry as part of the agenda for shipping reform. In this
regard the Minister has met with both employers and employees.
The
Minister also announced on 2 April 1998 that the Government had commenced a
two-stage review of the Navigation Act, and that stage 1 was currently under
way. The stage 1 amendments are aimed at implementing changes that are
consistent with company employment and can be dealt with simply and
expeditiously.
In developing the stage 1 amendments advice was sought
from a number of industry sources about the implications of those amendments.
While the broad thrust of the amendments was seen as consistent with company
employment for all seafarers, there was some concern expressed about removing
the current prescriptive requirements for ‘articles of agreement’.
Articles of agreement’ are a contract between a ship’s
master, acting on behalf of the employer, and each member of that ship's crew.
They have a long history, which dates back to the time when the majority of
seafarers were employed on a casual basis for service on a particular ship for a
particular voyage. In these early days, the ‘articles of agreement’
provided the only evidence of an employment agreement for seafarers. The
situation has changed greatly over the past seventy years and seafarers'
conditions of employment can now be protected by awards and company employment
agreements, with legal backing available through the WR Act.
The concerns
expressed on this matter have been addressed by retaining a provision in the
Navigation Act, which requires the owner/operator of a ship to enter into an
agreement with the master and seamen contracted to serve on their ships. The
precise details of agreements will be left for the parties concerned to
negotiate in a manner consistent with individual shipping company
operations.
6. Conclusions
The stage 1 amendments to the Navigation Act provide
measures, which are appropriate to a situation where company employment is to be
the norm in the Australian shipping industry. Accordingly, the amendments
provide for the repeal of a large number of employment related provisions in the
Navigation Act dealing with the following matters:
• the Marine Council and its functions;
• prohibition on demanding or receiving fees for the supply of seamen;
• prohibition (except as prescribed) on using the crew of a ship engaged in overseas voyages for handling cargo or ballast while the ship is in an Australian port;
• requirements to enter into a prescribed form of ‘articles of agreement’ covering conditions of employment; and
• detailed procedures for the discharge of seamen from service on a
ship and methods for paying their wages.
Details of the amendments are
given in the Explanatory Memorandum.
7. Implementation and Review
The passage of the Navigation
Amendment (Employment of Seafarers) Bill 1998 will implement the changes
outlined in the conclusions section above.
The effect of these amendments
will be monitored over the period of transition from the current arrangements to
full company employment for all seafarers.
While there will be a number of employment related provisions remaining in
the Act after the stage 1 amendments have come into force, these are matters
that need further consideration and have therefore been left for the stage 2
review.
Clause 1 provides that the Bill may be cited as the Navigation
Amendment (Employment of Seafarers) Act 1998.
Clause 2 specifies that the Act will commence 28 days after the day it
receives Royal Assent.
Clause 3: Schedule(s)
Clause 3
provides for the amendment of the Navigation Act 1912 as specified in the
Schedule.
Schedule 1 – Amendment -
Navigation Act 1912
Item 1 repeals the definition of ‘agreement’, which is replaced
by a new definition in subsection 6(8). This is being done to remove the
present narrow definition of ‘agreement’ which only covers the
traditional ‘articles of agreement’ and to broaden the definition to
cover any form of agreement including certified agreements and Australian
workplace agreements.
Item 2: Subsection 6(1) (definition of
articles of agreement)
Item 2 repeals the definition of
‘articles of agreement’ consistent with Item 1
above.
Item 3: Subsection 6(1) (definition of the Marine
Council)
Item 3 repeals the definition of ‘Marine
Council’ as the Marine Council is to be abolished.
Item
4: Subsections 6(4A), (4B) and (4C)
A new definition of ‘agreement’ is added to the Act
under this item so as to broaden its meaning to encompass the wider range of
agreements that is envisaged under the Workplace Relations
Act.
Item 6: Section 6B
Item 6 repeals section 6B,
which defines the circumstances in which a seaman is considered to have deserted
a ship. This is a matter that should be determined directly between employers
and their seagoing employees.
Item 7 replaces the current section 6E with a more streamlined section
under which employers and their individual masters and seamen will continue to
seek to agree as to the proper return port. In the absence of agreement,
however, the proper return port will be the port at which the master or seaman
concerned joins the ship. There will be no need, under new employment
arrangements, for a review mechanism in the Navigation Act to consider disputes
over the proper return port.
This item repeals section 17 concerning the production of certificates
covering the qualifications of seafarers employed under the system of articles
of agreement which will no longer be mandatory (see item 12 below). However,
the requirement to produce qualification certificates to the Australian Maritime
Safety Authority will be able to be covered through Marine Orders made pursuant
to section 15 of the Act.
This item repeals Division 4 of Part II, which prohibits the demanding or
receiving of remuneration for providing a seaman with employment. Under present
day practices there is no reason to have such a provision in the Navigation
Act.
This provision originally came from the British Merchant Shipping
Act 1894 and was intended to prohibit demanding payment from seamen for
finding them jobs – a practice known as ‘crimping’. The
current wording in section 32 is in line with the wording of Article 2 of ILO
Convention No. 9, Placing of Seamen 1920, which Australia is in the process of
denouncing. At present there are many ship management and crewing agents around
the world (including Australia) that specialise in managing crewing matters
(including supplying seamen) on behalf of shipowners and charge shipowners for
such services.
Item 10: Division 7 of Part II
This item
repeals Division 7 of Part II, which places restrictions on ships’ crews
handling cargo or ballast while in an Australian port. Work carried out by a
ship’s crew should be a matter for negotiation between employers and
employees, subject to applicable safety standards.
Item 11 repeals the heading of Division 8 of Part II and substitutes it
with ‘Division 8 - Employment of seafarers’, which is more
appropriate to a situation where company employment is the norm.
This item repeals the present highly prescriptive provisions in section
46 covering the form of agreement for the employment of seafarers. The Bill
replaces these provisions with a much simplified requirement to the effect that
the owner of a ship must enter into an agreement, as defined in the new
subsection 6(8), before a ship is taken to sea. The details of such an
agreement will be matters for negotiation between the parties concerned.
Also, in line with current practice, the penalty of $2,000 in section 46
is changed to 20 penalty units. A ‘penalty unit’ is prescribed by
section 4AA of the Crimes Act 1914 and is presently set at $110.
Therefore, at the commencement of the Act, the new penalty will be
$2,400.
Item 13 repeals sections 47 and 48, dealing with Marine Council
determinations and masters’ reports that persons are unsuitable for
engagement as seafarers. This is being done as a consequence of the
Government’s decision to abolish the Marine Council and its
functions.
Item 14 repeals section 50, which places a 6 month limitation on the
duration of a seafarer’s engagement under the existing articles of
agreement system, and includes requirements concerning a shipowner’s
obligations to pay the cost of returning a seafarer to his or her agreed return
port. These are matters that can be dealt with by negotiations between
employers and their seagoing employees and it is not appropriate to have them
prescribed in the Navigation Act.
Item 15 amends section 52 by removing the requirement for the employer to
notify the Australian Maritime Safety Authority (AMSA) of changes of crew on a
ship. However, for safety purposes section 52 will retain the requirement that
owners and/or masters are required to provide AMSA with details of the crew on a
ship when requested by AMSA. This information could be needed to assist in
dealing with an emergency situation on a ship or assessing if a ship is
adequately crewed.
Item 14 repeals sections 53, 54, 55, 56 and 57. This is required as a
consequence of repealing the mandatory requirement for a ship to have
‘articles of agreement’ as defined in the current section 6(1).
Further explanation of this issue is provided under item 1
above.
Item 17: Division 9 of Part II
Item 17 repeals
all the sections in Division 9 of Part II of the Act because there will no
longer be a need for a legislative requirement for the master to issue a seaman
with a certificate of discharge. This is a process associated with ending a
seafarer’s employment agreement under articles of agreement, which will no
longer be mandatory.
In future it is intended that the employer will be
required to provide, on request, to a master or seaman who is employed or has
been employed by that employer, a statement of service containing prescribed
information relating to that employment. That record is for the purposes of
calculating service to meet the requirements of the International Maritime
Organization's Convention on Standards of Training Certification and
Watchkeeping (STCW). This requirement can be provided for under Marine Orders
made pursuant to section 15 of the Act.
This item repeals those sections in Division 10 prescribing matters
concerning the payment of wages to seafarers. This amendment removes provisions
associated with employment under articles of agreement covering service on a
particular ship for a particular voyage. Given the changes to the definition of
agreement under items 1 and 2 above, these provisions are no longer appropriate.
Also the entitlement to, and payment of, wages for seamen will be subject to the
types of laws, awards and agreements which apply to other industries in
Australia.
The sections to be repealed deal with:
• allotment of seamen’s
wages (s.70);
• right to sue upon allotment notes
(s.71);
• commencement of payment (s.72);
• allotment to banks
(s.73);
• payment of wages upon discharge
(s.75);
• computation of wages (s.75A);
• account of wages on
discharge (s.76);
• time for payment of wages (s.77);
• wages
to run on in certain cases (s.78);
• reference of differences to
superintendent (s.81);
• commencement of right to wages
(s.82).
Item 19 repeals section 84, which provides that wages shall not be
dependent on the earning of freight. This is an outdated provision and the
conditions applicable to the payment of wages to seafarers are matters that
should be negotiated between employers and employees as in other industries in
Australia.
This item amends subsection 85(1) to make it consistent with new
employment arrangements whereby employment is not necessarily connected with a
particular voyage or ship.
Consequently, the phrase ‘belonging to
a ship is terminated, before the time contemplated in the seamen’s
agreement’ is to be deleted and substituted with the words ‘on a
ship is terminated’.
Item 21 repeals section 88 which is related to the processes associated
with the engagement and discharge of seamen under the traditional articles of
agreement system, which will no longer be mandatory. The issues covered in this
section should be subject to negotiations between employers and their seagoing
employees.
This item repeals section 93 and the explanation under item 21 above also
applies here.
This item amends subsection 104(2) to omit the reference to the content
of articles of agreement, as these will no longer be mandatory under the
Act.
This item repeals section 132, which is essentially a sick leave
provision and should more appropriately be covered in awards or employment
arrangements under the Workplace Relations Act.
Item 25 amends section 132A(1)(a) to remove the reference to section 132,
which is to be repealed.
Item 26 repeals section 132B, which concerns requirements for seafarers
who are left on shore to furnish an address and/or report to a doctor for a
medical examination. There is no need for such a detailed matter to be
prescribed in the Navigation Act, and in any event this could be covered in
employment arrangements between employers and their seagoing employees.
This item repeals section 138. This section, which allows the Marine
Council to consider and make recommendations to the Minister on crew
accommodation, is no longer applicable because the Marine Council is to be
abolished.
Item 28 amends paragraph 145(1)(a) by omitting words that relate to ship
by ship employment arrangements under articles of agreement, which will no
longer be mandatory.
Item 29 repeals sections 148C and 148D as they contain matters that
should more appropriately be dealt with under employment arrangements covered by
the Workplace Relations Act. These sections concern the wages and effects of
seamen left behind (s.148C) and wages and effects to be held in trust
(s.148D).
This item amends subsection 151(2) by deleting the words ‘, and if
the ship’s agreement will terminate at a time when the ship is outside
Australia, shall ’. This deletion is necessary because it refers to
‘articles of agreement’ which will no longer be mandatory under the
Act.
Item 31: Subsection 154(3)
This item amends subsection
154(3) by deleting the words ‘, or the certificate of a proper authority
stating that certain seamen were shipped in the ship from a port outside
Australia,’. This is being done because the Australian Maritime Safety
Authority will no longer issue such certificates.
Item 32 repeals subsection 161(2) covering wages and allotments for
seafarers because provisions in the Act related to these matters are to be
repealed (see item 18 above).
Item 33 amends the definition of ‘distressed seamen’ by
deleting the words ‘been discharged or’. This amendment is
necessary because provisions concerning ‘discharge’ of seamen in the
context of the articles of agreement system are also to be repealed.
This item repeals paragraph 167(1)(a), which requires the production of
‘articles of agreement’, which will no longer be mandatory under the
Act. The heading of section 167 is also amended to remove reference to
‘agreement’ and changed to read ‘Official log book to be
produced’.
Item 35: Subsections 167(2) and
(3)
Item 35 repeals subsections 167(2) and (3) and substitutes them
with a new subsection 167(2), which omits references to ‘articles of
agreement’. However, the requirement that the superintendent return the
official log book to the master within a reasonable time is retained.
Item 36: Subsection 171(5)
This item amends
subsection 171(5) by deleting the words ‘more than 24 hours after the
arrival of a ship at its final port of discharge’ and substituting them
with ‘after the end of the prescribed period’. This amendment
recognises that ships may not necessarily operate on the basis of having a final
port at which the crew is to be discharged. Seafarers engaged on company
employment agreements will not have to be discharged from a particular ship as
their employment will be continuous and cover service on more than one ship
operated by the employer.
Item 37 repeals section 172A as it deals with disciplinary matters in
section 46(4A) which is to be repealed and ascribes a function to the Australian
Maritime Safety Authority which it will no longer be undertaking. Discipline is
a matter that should be handled by the employer, as is the case in other
industries in Australia.
This item amends subsection 173(1) by deleting the words ‘on
termination of the articles of agreement of the ship’ and inserting
‘at such time and in such manner as prescribed’. This recognises
that articles of agreement will no longer be mandatory.
These subsections are to be amended by deleting ‘articles of’
so as to remove references to ‘articles of agreement’, but to still
recognise that shipowners will have employment agreements with seafarers in
their employ.
This item amends section 209 to remove the phrase at the end of the
section which refers to the discharge of a seaman as this relates to the
articles of agreement system, which will no longer be prescribed under the Act.
A consequential change is needed to the heading of this section to remove the
phrase ‘claim discharge from’ and replace it with ‘refuse to
sail on.
Item 41 amends section 251 by omitting the phrase at the end of the first
paragraph, which refers to the discharge of a seaman. This amendment is
necessary for the same reasons given under item 40 above.
Item 42
: Subsection 288(3)
Items 43, 44, and 45
These items provide for
consequential amendments to subsections 288(4),(5) and (6)
resulting from the
change referred to under item 42 above.
Item 46: Subsection
290(1)
This item amends subsection 290(1) by deleting the phrase
referring to section 46, which is to be repealed, and substituting a phrase
which links subsection 290(1) to the amended definition of
‘agreement’ to be included in section 6 (see item 1 above).
On the basis that they relate to employment provisions being repealed under the Bill, the above paragraphs, which allow for Administrative Appeals Tribunal reviews, are also to be repealed. They concern applications for review of a decision to:
• refuse to approve an agreement under subsection 46(2A);
• determine that a person is unsuitable for engagement as a seafarer under subsection 47(1) or revoke such a determination under subsection 47(2);
• disallow or refuse to disallow a deduction under subsection 76(4);
and
• refuse to waive, under subsection 76(5), requirements that ship
masters keep appropriate records of deductions.
This item repeals section 424 concerning the establishment and
composition of the Marine Council. The Marine Council’s main functions
have been to deal with issues concerning the disciplining of seafarers and their
suitability for employment at sea and the standards of accommodation in
Australian ships. Under company employment it is the responsibility of the
employer to determine these matters and there is no need for a Government
appointed body to perform such tasks.
----------------------------------------------------------------------
Occupational Health and Safety (Maritime Industry) Act
1993
Item 2: Section 4 (definition of employee)
This
item replaces the existing definition of ‘employee’ with a new
definition, which does not include a reference to a person engaged on a
prescribed ship or unit under articles of agreement. This amendment is
consequential to the repeal of the definition of ‘articles of
agreement’.