In this In Brief, we discuss the proposed reforms to occupational health and safety (OHS) regulation in the maritime industry.
These proposals arise from a recent review of the ‘Seacare’ scheme, which provides for OHS, rehabilitation and workers’ compensation arrangements for a defined part of the maritime industry. This industry-focused regulation is considered necessary due to the inherently higher risks of seafaring, compared to most other sectors.
The review report, released by the Government in May 2013, found that the legislation supporting Seacare has not been kept up to date, and performance under each aspect of the scheme has been relatively poor.1
The report included a number of recommendations for changes to the existing OHS framework under the Seacare scheme.
Some of the key recommendations include:
- Aligning the provisions in the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) (OHS(MI) Act) with those in the model Work Health and Safety Bill (Model WHS Bill) (implemented federally and in all states and territories except Victoria and Western Australia), with modifications as required for the maritime industry.
- Retitling the OHS(MI) Act as the Work Health and Safety (Maritime Industry) Act (proposed WHS(MI) Act).
- Expanding the concept of primary dutyholders to include all persons conducting a business or undertaking (PCBU), who would have a duty of care to workers and other persons to ensure (so far as is reasonably practicable) their health and safety in relation to work at the business or undertaking. Under the OHS(MI) Act, the primary duty is limited to an operator of a prescribed ship or unit.
- The introduction of a positive duty on officers of a PCBU to secure safety on the operator’s vessel, in a manner consistent with the obligations of officers under the Model WHS Bill. Certain officers of operators currently covered by the OHS(MI) Act would be required to exercise due diligence to ensure compliance with the proposed WHS(MI) Act.
- Adapting the principles under the Model WHS Bill that prevent duties from being transferred; that a person may simultaneously have more than one duty; and that more than one person may hold the same duty concurrently.
- Increasing penalties to bring them into line with the Model WHS Bill. The maximum penalties would rise from $170,000 for an operator under the OHS(MI) Act, to $3,000,000 for a body corporate and $600,000 or five years’ imprisonment for an individual PCBU or officer under the proposed WHS(MI) Act.
- Introducing therequirement that duty holders consult, cooperate and coordinate with other duty holders to ensure compliance with duties.
- Ensuring similar arrangements for consultation, Health and Safety Representatives (HSRs) and health and safety committees are in place under the proposed WHS(MI) Act, compared with those in the Model WHS Bill. The main change required would be to only allow HSRs to exercise powers (e.g. issuing a provisional improvement notice) where they have received training.
- Allowing union officials with an entry permit issued under the Model WHS Bill to enter workplaces to inquire about suspected contraventions of OHS laws and to consult workers on OHS matters and risks. The OHS(MI) Act currently has no provisions for union right of entry. Given the likely practical difficulties of allowing access to vessels (e.g. due to their mobility, and security requirements while in port), this is likely to be the most controversial recommendation from the perspective of maritime industry employers (see further below).
- Increasing an Inspector’s powers to obtain information from persons they believe are capable of providing information, documents or other evidence in relation to a possible contravention.
- Increasing the range of enforcement and sentencing options to include infringement notices, enforceable undertakings, injunctions, adverse publicity orders, remedial orders, training orders and civil proceedings.
If the review recommendations are implemented, what will be the impact for business?
Employers and other stakeholders have expressed concern around some aspects of the proposed changes.
The main concern is that aligning the OHS(MI) Act entirely with the Model WHS Bill may not meet the maritime industry’s unique requirements.
Specifically, stakeholders have expressed the following views:
- that definitions of terms such as ‘operator, ‘worker’ and ‘workplace’ need to remain industry-specific and the OHS(MI) Act should remain aligned with the Navigation Act 2012 (Cth) in this regard;
- that extending the model WHS laws offshore would be inconsistent with domestic and international law obligations or industry practices such as those relating to the ‘internal economy of the ship’; and
- in relation to union right of entry, that the nature of the equipment and work environment on vessels requires that the number of people who may enter should be limited, and that the Australian Maritime Safety Authority effectively regulates safety with an appropriate level of independence and expertise so that rights of entry for other parties are not necessary.
How soon will any new laws implementing the review recommendations take effect?
The report recommends that:
- a suitable transition period be allowed so that the regulatory authorities and industry parties can make suitable preparations for the commencement of any new laws; and
- the transitional principles for the Model WHS Bill and regulations be used, subject to any modifications determined by the Seacare Authority.
However, a bigger question is whether the recommendations of the review report will be implemented at all. The Government has not yet issued a response indicating which recommendations (if any) it intends to adopt; and the Coalition’s position on the proposed changes to the Seacare scheme is not known.
Much may therefore depend on the outcome of the federal election later this year.