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31 August, 2016
As progress continues with the general harmonisation of Australian Work Health and Safety (WHS) laws, determining the laws that apply to offshore and maritime workplaces and activities in Australian waters remains riddled with complexity.
If coverage issues can be adequately addressed, the reform proposals would seem to be a beneficial step towards achieving health and safety harmony.
In this update we highlight recent Australian government proposals that would bring about greater harmony with the country's general WHS laws and long overdue clarity for vessel operators and seafarers.
Background
The following are the principal acts, most of which have undergone recent amendment, that have a direct or indirect impact on which occupational health and safety laws apply to 'vessels' in Australian waters:
- Navigation Act 2012 (Cth) (Navigation Act);
- Marine Safety (Domestic Commercial Vessels) National Law 2012 (Cth) (Marine Safety National Law);
- Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) (Maritime OHS Act);
- Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act); and
- Australian Commonwealth, state and territory Work Health and Safety Acts.
Navigating the turbulent waters generated by the interplay between these acts and associated regimes requires consideration of many factors, including registration and ownership of a vessel, the type of voyage and operation being undertaken by the vessel, any declaration under new and repealed laws and the level of connection between a vessel and a State or Territory.
The principal act that imposes occupational safety and health duties in relation to the Australian maritime industry is the Maritime OHS Act. However the Maritime OHS Act does not apply universally to all vessels or maritime activities, and determining when it does apply is not straight forward. The Navigation Act and Marine Safety National Law have separate criteria for their application. In addition, if the vessel is a 'facility' under the OPGGS Act, then the vessel will be exclusively subject to the OHS regime prescribed by that Act. Also, presently, the Work Health and Safety Act 2011 (Cth) does not apply in relation to any structure or vessel to which the Maritime OHS Act applies or to a 'facility' to which the OPGGS Act applies.[1] If a vessel is outside these regimes, then the harmonised provisions under Work Health and Safety Act 2011 (Cth) may apply and impose duties in relation to activities occurring offshore, including potentially extraterritorially.
Ultimately, a vessel may be subject to one or more of these regimes, and may move between regimes depending on where they are located and the activities being conducted.
Although some harmony exists between some of these regimes in relation to the nature and extent of the health and safety duties imposed, disparity exists, particularly between the regimes under the Maritime OHS Act and Work Health and Safety Act 2011 (Cth).
Harmonisation Proposal
The Maritime OHS Act was based on the Occupational Health and Safety Act 1991 (Cth). This act was replaced by the Work Health and Safety Act 2011 (Cth). However, the Maritime OHS Act has not been subsequently updated to reflect the model laws and many of its provisions are presently out of alignment with the harmonised and modernised model WHS laws.
It was recommended, following the Review of the Seacare Scheme conducted in 2013, that the provisions of the Maritime OHS Act and Work Health and Safety Act 2011 (Cth) be aligned with modifications as required for the maritime industry.[2] The Australian government appears to have addressed this recommendation in the recent consultation Regulation Impact Statement (RIS) regarding changes to the Seacare scheme.[3] However, rather than proposing an alignment between the relevant acts, the reform options involve repealing the Maritime OHS Act, and either facilitating coverage under the state and territory WHS schemes, or amending the Work Health and Safety Act 2011 (Cth) to extend its coverage to any vessel or structure presently covered by the Maritime OHS Act. The RIS states that there is no need to retain specific WHS legislation covering the maritime industry.
To effect the first of these options, state and territory governments would likely need to amend their laws.
If the second option is followed, the regulations accompanying the Maritime OSH Act would be repealed, and the regulations made under the Work Health and Safety Act 2011 (Cth) and the approved Codes of Practice would apply, with some potential modifications where required.
The RIS contains a useful summary of the key differences between the Work Health and Safety Act 2011 (Cth) and Maritime OSH Act and an overview of how the Work Health and Safety Act 2011 (Cth) would apply to vessel operators and officers.[4]
With the second option, new rules that address the longstanding coverage issues are also proposed. The rules would broadly have similar scope to the current rules but provide certainty and clarity. All Australian registered vessels and all foreign vessels with a majority Australian crew would remain the principal test for coverage. Vessels that are wholly or substantially engaged in voyages and other tasks within the coastal waters of a state or territory, and recreational and fishing vessels, would not be covered. To provide flexibility, it is also proposed that declarations and opt-in provisions be available.
Next steps
If coverage issues can be adequately addressed, the reform proposals would seem to be a beneficial step towards achieving health and safety harmony. The consultation process is still in its early stages and much of the detail is yet to be presented for consideration. We will keep you informed about developments.
The Australian maritime WHS regime is a jigsaw with a number of pieces. These proposals are not the only pieces, and potential changes to vessel registration and coastal trading may impact on how all the pieces fit together.
[1] Section 12A of the Work Health and Safety Act 2011 (Cth).
[2] Australian Government, Review of the Seacare Scheme, Report, March 2013.
[3] See Australian Government, Seacare scheme – Reforms to Work Health and Safety and Workers' Compensation, Consultation Paper, December 2015 (Seacare Consultation Paper).
[4] Seacare Consultation Paper at pages 20-26.
For further information, please contact:
Maurice Thompson, Partner, Clyde & Co
maurice.thompson@clydeco.com
