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Amendments to scheme coverage
Federal Court's decision in Samson Maritime v Aucote
In Samson Maritime Pty Ltd v Aucote (the 'Aucote decision'), the Full Federal Court held that the Seacare scheme applies to all 'employees' (as defined by the Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act)) of a trading, financial or foreign corporation.
The Aucote decision has substantially shifted workers' compensation and work health and safety arrangements in the Australian maritime industry. Ships and employees that were historically considered to be covered by state workers' compensation and work health and safety laws are now covered by the Commonwealth's Seacare scheme.
In response to the Aucote decision, the Government introduced the Seafarers Rehabilitation and Compensation and Other Legislation Amendment Act 2015 (Amendment Act) into Parliament. The Seacare Authority and Minister also granted exemptions and declarations affecting the coverage of the Seacare scheme.
These actions were taken to provide certainty to maritime industry participants over the coverage of the Seacare scheme and state workers' compensation and work health and safety schemes.
Seafarers Rehabilitation and Compensation and Other Legislation Amendment Act 2015
The Amendment Act amends the coverage of the Seacare scheme from the commencement of the scheme in 1993 until 26 May 2015 (the date of Royal Assent). It confirms that, generally, the Seacare scheme does not apply to employees on ships engaged in intra-state trade or commerce, as was broadly understood to be the case until the Aucote decision, up to the date of Royal Assent.
The Amendment Act does not disturb any claims for workers' compensation under the Seacare scheme made before 26 February 2015 (the date it entered Parliament). Any employees who provided notice of injury before 26 February 2015, but had not made a claim for workers' compensation by that date, will also not be affected so long as the notice of injury was provided for the purpose of making a claim under the Seacare scheme and they have not made a claim for compensation under state legislation.
This restores certainty to maritime industry employers and employees regarding past actions taken and compensation payments received under the Seacare scheme. It will also assist with providing certainty regarding past actions taken and compensation payments received under state workers' compensation and work health and safety legislation.
Seacare Authority Exemptions and Minister's Declarations
The Seacare Authority has granted two exemptions from coverage by the Seafarers Act. The first of these exemptions (Exemption – Multiple vessels) was granted on 24 March 2015. The second (Exemption – Multiple vessels, Domestic Commercial Vessels) was granted on 21 April 2015.
The Minister for Employment, Senator the Hon. Eric Abetz, also made declarations under the Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act) (OHS(MI) Act declaration) and the Seafarers Act (Seafarers Act declaration). These declarations commenced on 26 March 2015.
These exemptions and declarations mean the coverage of the Seacare scheme is currently limited to what it was broadly understood to be prior to the Aucote decision. They apply to all ships that are engaged in intrastate trade and not engaged in interstate or international trade.The exemptions and declarations together ensure that these ships are not covered by the Seacare scheme and are instead covered by state legislation, as had been understood to be the case prior to the Aucote decision.