Ships, employees and hours worked to be included in ESD reports
Only ships (and employees and hours worked associated with employment on those ships) to which the Seafarers Act and/or the OHS(MI) Act applies, are to be reported to the Seacare Authority. Where ships fall in and out of coverage of these Acts, it is the responsibility of the employer/operator to put in place systems to record and report only those ships, employees and hours worked, relevant to periods when the ships are covered by the relevant Acts .
Industrial instruments which specify compliance with the provisions of the Seafarers Act
Employers whose ships and employees are covered by industrial instruments that require the application of the provisions of the Seafarers Act, only by virtue of that industrial instrument, but where the Seafarers Act does not strictly apply, are advised that information on such ships and employees should not be included in ESD information reported to the Seacare Authority.
Employers are advised to carefully consider the application provisions of both the Seafarers Act and OHS(MI) Act when determining whether these Acts apply. If you are in doubt about the application of Seacare legislation to your vessels we suggest you contact the Seacare Authority at seacare@comcare.gov.au or on 02-6275 0070 and your legal adviser.
Please note that most industrial instruments do not similarly apply the OHS(MI) Act. However, a s8A or s8AA declaration under the Navigation Act 1912 (Navigation Act) has the effect of applying the OHS(MI) Act to employees on a declared vessel (unless the Petroleum (Submerged Lands) Act 1997 (P(SL) Act ) applies.
Manning contracts or labour supply/labour hire arrangements
In circumstances where employers are involved in manning contracts (or labour supply/labour hire arrangements) the employer will need to determine if the labour is supplied to ships where the employment is on a prescribed ship (or a prescribed unit in the case of the OHS(MI) Act). For example, if an offshore employer of seafarers enters into a contract to supply a majority Australian crew to a foreign registered ship which is not operated by a person, firm or company that has its principal place of business in Australia, then the ship will most likely not be a prescribed ship. It may however be a prescribed unit (see definitions below for prescribed ship and prescribed unit).
Even if the employer has a policy of insurance for such seafarers to cover liabilities under the Seafarers Act (or has an industrial instrument specifying that the benefits of the Seafarers Act apply) those employees and the hours worked by those employees should not be included in ESD data reported to the Seacare Authority.
If on the other hand the labour is supplied to a foreign registered ship where the majority of crew are Australian residents and the operator is a person, firm or company which has its principal place of business in Australia, then the ship will most likely be a prescribed ship. As a consequence, the employees and hours worked by those employees should be included in ESD data reported to the Seacare Authority.
Ship management companies
Ship management companies will need to make the same assessments as employers involved with manning or labour supply/labour hire contracts and provide data to Seacare based on the principles outlined above.
Employment to which a s20A exemption is in force
If employment on one or more of your vessels is the subject of a s20A exemption under the Seafarers Act during the whole of the reporting period, the employer is still required to report to the Seacare Authority - in such a case it would be a zero (0) report unde the Seafarers Act i.e. zero employees and zero hours worked - under the Seafarers Act. Similarly, if the exemption was in force for the majority of the reporting period, i.e. greater than 3 months, a zero (0) report is required. If, however, the exemption is in force for less than 3 months during the reporting period, a full report must be lodged.
Importantly, a s20A exemption under the Seafarers Act does not exempt the operation of the OHS(MI) Act, so employee (FTE) and hours worked information should still be lodged.
Copies of compensation claim forms to AMICA
Employers/operators should apply the same tests when considering whether to forward a copy of a Claim for Rehabilitation/Compensation form to AMICA if an employee forwards you a copy of a Claim form. AMICA only requires a copy of a Claim form in relation to injuries (including diseases) sustained while the employee was employed on a ship during the time it is covered by the Seafarers Act.
See the Glossary for definitions.