Mohammed Rahman and Offshore Marine Services Pty Ltd
[2013] AATA 57
[2013] AATA 57
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3668
Re
Mohammed Rahman
APPLICANT
And
Offshore Marine Services Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 4 February 2013 Place Sydney Decision Summary
The Tribunal affirms the Respondent’s decision to refuse Mr Rahman’s claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992.
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Deputy President RP Handley
CATCHWORDS
COMPENSATION – Applicant injured during an intra-State voyage – Applicant compensated under Workers Compensation and Injury Management Act 1981 (WA) – whether Seafarers Rehabilitation and Compensation Act 1992 (Cth) or Workers Compensation and Injury Management Act 1981 (WA) applies in respect of Applicant’s injury – Decision under review affirmed
LEGISLATION
Commonwealth Constitution
Fair Work Act 2009 (Cth)
Freedom of Information Act 1982 (Cth)
Legislative Instruments Act 2003 (Cth)
Navigation Act 1912 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Workers Compensation and Injury Management Act 1981 (WA)
CASES
Tiwi Barge Services Pty Ltd v Stark (1997) 78 FCR 218
REASONS FOR DECISION
Deputy President RP Handley
February 2013
Mr Rahman has applied to the Tribunal for a review of a decision of Offshore Marine Services Pty Ltd (OMS) dated 26 June 2012 to refuse Mr Rahman’s application for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Seafarers Act) on the ground that the Act did not apply in his case.
BACKGROUND
Mr Rahman, who is aged 52, made a claim for compensation under the Seafarers Act dated 23 February 2012 in respect of an injury to his left ribs on 28 January 2012 while he was employed by OMS as a Second Officer and serving on an ocean-going tug, the PB Konui.
On 19 March 2012, OMS denied liability in respect of the claim on the ground that s 19 of the Seafarers Act did not apply in respect of Mr Rahman’s injury. However, OMS found the claim to be covered by the Workers Compensation and Injury Management Act 1981 (WA) (the WA Act) and Mr Rahman was paid weekly compensation by OMS’s workers compensation insurer, CGU Workers Compensation. OMS states that it “topped up” the compensation payments made to Mr Rahman under the WA Act so that Mr Rahman received the same compensation he would have received had his claim been accepted under the Seafarers Act.
On 4 July 2012, Mr Rahman was certified fit to undertake his pre-injury duties by Dr NC Khoo, the Medical Inspector of Seamen. On 3 September 2012, the Conciliation Service of WorkCover WA suspended Mr Rahman’s weekly compensation payments for a period of 12 weeks “or until the dispute has been determined by an Arbitrator, whichever is the sooner”.
Mr Rahman sought a reconsideration of OMS’s decision to deny liability under the Seafarers Act. On 26 June 2012, a ‘Reconsiderations Officer’ of OMS affirmed the original decision after a review. Mr Rahman states that he received notification of this decision on 10 July 2012 and, on 24 August 2012, he lodged an application with the Tribunal for review of this decision.
The parties have requested that the Tribunal make a decision ‘on the papers’ on the preliminary issue of whether the Seafarers Act applies in respect of Mr Rahman’s claim for compensation.
THE RELEVANT LEGISLATION
Section 19(1) of the Seafarers Act states:
(1) This Act applies to the employment of employees on a prescribed ship that is engaged in trade or commerce:
(a) between Australia and places outside Australia; or
(aa) between 2 places outside Australia; or
(b) among the States; or
(c) within a Territory, between a State and a Territory or between 2 Territories.
The word ‘employee’ is defined in s 4(1) to include a ‘seafarer’, a word which is in turn defined in s 3 to include “a person employed in any capacity on a prescribed ship”. The term ‘prescribed ship’ is defined in s 3 as meaning “a ship to which Part II of the Navigation Act applies”. The Navigation Act 1912 (Cth) (the 1912 Act) specifies the ships to which it applies by specifically excluding certain categories of ship, including in s 2(1)(a) “a trading ship proceeding on a voyage other than an overseas voyage or an inter-State voyage”.
SUBMISSIONS AND EVIDENCE
OMS contends that at the time of Mr Rahman’s injury, while the PB Konui was a ‘prescribed ship’ as defined in s 10 of the Navigation Act 1912, the provisions of that Act did not apply because of the exclusion contained in s 2(1) of the Act. More particularly, the PB Konui was not engaged in a voyage of a kind identified in any of subparagraphs (a) to (c) of s 19(1) of the Seafarers Act; rather, it was engaged in intra-State trade between the ports of Fremantle and Barrow Island in Western Australia. Thus, the Seafarers Act does not apply in respect of Mr Rahman’s injury.
OMS referred to the decision of the Full Federal Court in Tiwi Barge Services Pty Ltd v Stark (1997) 78 FCR 218 and in Hingston v Pacific Tug (Australia) Pty Ltd (2012) 204 FCR 472 (Hingston). In the latter case, the Court emphasised that it is the purpose of the ship proceeding on the voyage that is critical in determining the application of the provisions of the Navigation Act. Here the purpose of the voyage was to travel between two ports in Western Australia. OMS submitted that the fact that in order to avoid adverse weather conditions resulting from a cyclone, the PB Konui may have ventured outside Western Australian waters did not change the intra-State nature of the voyage.
OMS noted that no declaration of the kind referred to in s 19(1A) the Seafarers Act is in force in relation to the PB Konui. This subsection states:
(1A) This Act also applies to the employment of employees on any prescribed ship that is:
(a) an off-shore industry vessel in relation to which a declaration under subsection 8A(2) of the Navigation Act is in force; or
(b) a trading ship in relation to which a declaration under subsection 8AA(2) of that Act is in force.
In his submissions dated 21 November 2012, Mr Rahman referred to the ‘Offshore Oil and Gas Enterprise Agreement’ (the EA) dated 2010 between OMS and the Australian Maritime Officers Union which was approved by Commissioner Williams of Fair Work Australia on 9 August 2010. Mr Rahman said that notwithstanding that a declaration has not been made in respect of the PB Konui under s 8A(2) of the Navigation Act 1912 (Cth), cl 26.4 of the EA states:
26.4 For the purpose of the application of the SRC Act, Officers and the Employer bound by this Agreement, will carry out all obligations and receive all entitlements in accordance with the SRC Act as if the employment was in connected with a “Prescribed Ship” as defined and applied in the SRC Act, notwithstanding that a declaration under subsection 8A(2) of the Nav Act is not in force.
Mr Rahman said his letter of engagement by OMS stated the terms and conditions of engagement are as per the current union agreement.
Mr Rahman also referred to s 20A of the Seafarers Act which states:
The Authority may, in writing, either generally or as otherwise provided in the exemption, exempt the employment on a particular ship of all employees, of a particular group or particular groups of employees, or of a particular employee or particular employees, from the application of this Act.
He noted that there was no exemption applicable in respect of the PB Konui.
However, Mr Rahman also pointed to s 20(9) of the WA Act which states:
(9) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.
Mr Rahman contends that the EA states the Seafarers Act applies in a case such as his and, therefore, pursuant to s 20(9) of the WA Act, the WA Act does not apply in his case.
OMS says that the EA is a registered enterprise agreement approved by Fair Work Australia under s 185 of the Fair Work Act 2009 (Cth) and a statutory instrument. However, the EA only has legal effect and can only be enforced pursuant to the provisions of that Act. OMS submits that if, at law, the Seafarers Act does not apply, the EA “cannot have the effect of requiring the parties to the EA to comply with the provisions of the SRC [Act]”.
OMS notes that Mr Rahman had received weekly compensation and statutory benefits under the WA Act which, it contended, applied in Mr Rahman’s case. OMS says that it “topped up” the amounts payable under the WA Act so that Mr Rahman received the same weekly compensation that he would have received under the Seafarers Act. Thus, OMS contended, it had complied with cl 26.4 of the EA and Mr Rahman has not been prejudiced by his claim being dealt with under the WA Act. In any event, OMS contends, the Tribunal has no jurisdiction to enforce industrial instruments empowered by the Fair Work Act 2009.
Mr Rahman contends that he has been “severely disadvantaged” by his claim being dealt with under the WA Act rather than the Seafarers Act. While OMS has ‘topped up’ his weekly compensation payments, it has failed to provide the rehabilitation required under the Seafarers Act and it did not offer him re-employment once he was declared ‘fit for duty’ by his treating doctor. Instead, his employment was terminated.
Mr Rahman pointed to Appendix 3 to the Annual Report of Seacare (the Seafarers Safety, Rehabilitation and Compensation Authority) for 2011-12 which lists the PB Konui as one of OMS’s ships engaged in the Seacare Scheme in 2011-12. Mr Rahman has also provided a list of ships, obtained under the Freedom of Information Act 1982 (Cth), in respect of which claims under the Seafarers Act were accepted, which includes the PB Konui. In his final submissions dated 29 January 2013, at paragraph 7, Mr Rahman said it is not only OMS which has dealt with such compensation claims under the Seafarers Act:
Also similarly all shipping companies in Australia follow the same practice and if ship (sic) in (sic) insured with SEACARE scheme (sic) then SRC Act (sic) is applied.
OMS provided a statement dated 16 January 2013 from John Thornton, OMS’s Claims Advisor. At paragraph 2, he stated that prior to Mr Rahman’s claim for compensation under the Seafarers Act, he and other relevant OMS employees had thought that the Seafarers Act:
... applied to all workers’ compensation claims brought by any OMS employees employed on any sea-going vessel, regardless of whether or not the relevant vessel had been engaged on an intra-state (sic) voyage at the time the subject injury occurred. For that reason, prior to the Claim being brought [by Mr Rahman], it was the practice of OMS that all workers’ compensation claims brought by any OMS employees employed on any sea-going vessel were dealt with under the provision of the SRC.
Mr Thornton noted that 11 claims for injuries sustained by OMS employees on intra-State voyages had been dealt with under the Seafarers Act, including two from employees engaged on the PB Konui.
Mr Thornton stated that in about March 2012, he formed the view that the provisions of the Seafarers Act did not apply to Mr Rahman’s claim because his injury was sustained on an intra-State voyage but, rather, the provisions of the WA Act applied. Mr Thornton therefore referred the claim to OMS’s relevant insurer on that basis. However, he said that OMS made such further weekly compensation payments to Mr Rahman so as to place him in the same position that he would have been in had his claim been dealt with under the provisions of the Seafarers Act. Mr Thornton said that Mr Rahman’s claim was the first such claim dealt with by OMS under the provisions of the WA Act rather than the Seafarers Act.
DISCUSSION/CONSIDERATION
The preliminary issue for the Tribunal to determine is whether, pursuant to s 19, the Seafarers Act applies in Mr Rahman’s case. For the Seafarers Act to apply in his case, his employment must fall within the terms of s 19 of the Act. Section 19(1) is set out in paragraph 7 above and requires both that the employee is employed “on a prescribed ship”, and that the ship is engaged in trade or commerce on a voyage of a kind specified in subparagraphs (a) to (c). It is notable that voyages within a State – intra-State trade – are not included. In Mr Rahman’s case, the PB Konui was engaged in a voyage between two ports in Western Australia. The purpose of the voyage was to travel from the port of Freemantle to the port of Barrow Island, both within Western Australia (see above the reference to Hingston at paragraph 10). It matters not that in the course of the voyage, the ship may have travelled outside Western Australian waters to avoid cyclonic weather conditions.
I also note that pursuant to s 2(1) of the Navigation Act 1912, that Act does not apply in relation to “(a) a trading ship proceeding on a voyage other than an overseas voyage or an inter-State voyage”. Thus, a ship engaged in intra-State trade is not a ‘prescribed ship’ and s 19(1) of Seafarers Act does not apply.
Mr Rahman accepts that no declaration had been made under subsection 8A(2) of the Navigation Act 1912 in respect of the PB Konui that would bring his employment within the terms of s 19(1A) of the Seafarers Act: see above paragraph 11.
Mr Rahman’s principal argument is that he can claim compensation under the Seafarers Act pursuant to cl 26.4 of the EA, set out at paragraph 12, above. Whilst approval by the Fair Work Commission may give the EA the status of a ‘fair work instrument’, as defined in s 12 of the Fair Work Act 2009, it does not have the status of a ‘legislative instrument’ pursuant to s 7(1) of the Legislative Instruments Act 2003 (Cth). Section 7(1) lists instruments that are not legislative instruments within the meaning of the Act, and includes ‘fair work instruments’. In terms of Commonwealth legislation, a fair work instrument can only operate subject to the terms of relevant primary legislation. The terms of the EA do not over-ride the terms of the Seafarers Act, which is of course primary legislation, but, rather, the EA must operate subject to the terms of the Seafarers Act. The Tribunal also has no jurisdiction in relation to the Fair Work Act 2009 and, as OMS submits, the EA only has legal effect and can only be enforced pursuant to the terms of that Act.
The fact that, according to Mr Thornton’s statement, OMS has formerly dealt with similar claims under the Seafarers Act under the mistaken belief that the Seafarers Act rather than the WA Act applied, is not material to the application of the relevant law in determining Mr Rahman’s claim. While it is understandable that, given OMS’s past claims practice, Mr Rahman might want his claim to be dealt with under the provisions of the Seafarers Act, especially if, as he contends, he is suffering a disadvantage as a result, the applicability of the Act is dependent not on OMS’s past claims practice or that of other shipping companies, but on whether the facts of his case satisfy the statutory requirements for the Act to apply. As OMS’s solicitors pointed out, intra-State voyages are excluded from the operation of the Seafarers Act as a consequence of the limits placed on the Commonwealth Parliament’s powers by the Commonwealth Constitution.
In conclusion, since s 19 of the Seafarers Act did not apply to Mr Rahman’s employment on the PB Konui at the time of his injury, he is not able to make a claim under the Act. I note that according to OMS the compensation paid to Mr Rahman under the WA Act was “topped up” so that he received the same compensation he would have received under the Seafarers Act. OMS contends that it thereby complied with the cl 26.4 of the EA and that Mr Rahman suffered no prejudice as a result of his claim being dealt with under the WA Act. By contrast, as noted above, Mr Rahman contends that he has been “severely disadvantaged”. However, whether or not OMS complied with the terms of the EA is not a matter which is within the jurisdiction of this Tribunal and it is therefore not a matter on which I can comment.
DECISION
The Tribunal affirms the decision by OMS to refuse Mr Rahman’s claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992.
I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
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Associate
Dated 4 February 2013
Date of hearing On the papers Applicant In person Advocate for the Respondent B Bolton Solicitors for the Respondent SRB Legal
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