Mr Mohammed Rahman v Offshore Marine Services

[2012] FWA 5140

[2012] FWA 5140

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Mr Mohammed Rahman
v
Offshore Marine Services
(C2012/3195)

DEPUTY PRESIDENT SAMS SYDNEY, 21 JUNE 2012

Alleged dispute about a matter arising under an enterprise agreement - workers’ compensation injury whilst at sea - interaction of Seafarers’ Act and the Agreement - no disadvantage to employee - benefits ‘topped up’ - no jurisdiction - application for orders dismissed.

BACKGROUND

[1] Around 3:45am on 28 January 2012, Mr Mohammed Rahman, 2nd officer on the vessel, ‘PB Konui’, was injured at sea while on watch keeping duties, during heavy seas. The vessel was engaged on a voyage between two ports in Western Australia; namely, Fremantle and Barrow Island. Mr Rahman filed a workers’ compensation claim form with his employer, Offshore Marine Services (‘Offshore Marine’), on 23 February 2012.

[2] It would appear that following his injury Mr Rahman was initially informed that the vessel he was on when he was injured, was covered by the Seacare Scheme - a workers’ compensation scheme established under the Seafarer’s Rehabilitation and Compensation Act 1992 (‘the Seafarers’ Act’) and he filed his claim for workers’ compensation on that basis. I note that at the time, he also complained about not receiving proper medical treatment in a timely manner and he alleged a failure of his employer to investigate the cause of his injury.

[3] On 19 March 2012, Mr Rahman was advised by his Offshore Marine as follows:

‘We refer to the above claim and confirm that this matter has been considered in accordance with the provisions of the Seafarers Rehabilitation and Compensation Act 1992 (“the SRC Act”) taking into account the available medical and other evidence.

Terms of Determination

We determine under sub-section 26(1) of the SRC Act that there is no liability to pay any further compensation to Mohammed Rahman in accordance with any section of the SRC Act for a lower back strain.

Statement of Reasons

1. Mohammed Rahman lodged a claim for compensation dated 23/02/2012 for an undisplaced transverse fracture - anterior left 2nd rib from a date of incident 28/02/2012.

2. At the time of the incident, Mohammed Rahman was employed as a Second Officer on the PB Konui by Offshore Marine Services.

3. It has been identified that as the vessel the PB Konui is not said to be engaged in trade or commerce between Australia and places outside Australia, between two places outside Australia, among the States or within a Territory or between State and Territory or between two Territories, as is required by Section 19 of the Seafarers Act.

4. Therefore we determine under Section 19 of the Seafarer’s Act that the Seafarer’s Act does not apply to this claim and that the claim is therefore to be covered under the Worker’s Compensation and Injury Management Act 1981 (WA).’

[4] Mr Rahman was further advised that he had 30 days in which to seek a reconsideration of the above decision and a further right of review to the Administrative Appeals Tribunal (AAT). It would seem that neither of these options have been pursued by Mr Rahman.

THE AGREEMENT

[5] On 27 March 2012, Mr Rahman filed an application, pursuant to s 739 of the Fair Work Act2009 (‘the Act’) in which he seeks to have Fair Work Australia (FWA) deal with a dispute in accordance with a dispute settlement procedure under his Agreement. There is no argument that Mr Rahman is employed under the Offshore Marine Services Pty Ltd and Australian Maritime Officers’ Union Offshore Oil and Gas Enterprise Agreement [2010] FWAA 5964 (‘the Agreement’). The dispute settlement clause in the Agreement is found at cl 12 as follows:

‘The Employer, Officers and AMOU agree to strictly adhere to this dispute settlement procedure, so that any dispute shall be promptly resolved by conciliation in good faith.

This is in recognition that it is for the overall benefit of the Employer and Officers. The procedure that will be followed to ensure the highest standard of industrial relation reliability is detailed as follows. In following this procedure all parties recognise and respect the valid roles of the other parties.

The parties to this Agreement shall undertake all necessary steps to ensure that the following procedures apply in the event of any grievance or dispute. The intention of this clause is to ensure that any dispute shall be promptly resolved by conciliation in good faith without provocation action or resort to Industrial bans or stoppages.

12.2. Matters likely to become industrial issues - The Employer and AMOU shall respectively notify each other as soon as possible of any industrial matter, which in the opinion of that party might give rise to an industrial dispute. If the issue is vessel based all efforts will be made to resolve the matter onboard in the first instance.

12.3. Dispute at Shipboard Level - in the event of a dispute at a shipboard level, the matter is to be first discussed onboard between the AMOU representative and the Master with the aim of resolving the issue within 24 hours.

12.4. Lack of Agreement at Shipboard Level - If no agreement is reached at a shipboard level, an official of the AMOU Offshore Management group will be advised as soon as possible of the issue. The AMOU representative will then discuss the matter without delay with an appropriate Employer representative.

12.5. Resolution by Facilitator. If no agreement is reached after the above steps have been taken, the matter shall be referred to a mutually agreed facilitator for conciliation or determination if agreed.

12.6. Dispute Settlements. The above steps shall not preclude the right of either party to refer to a dispute to the FWA prior to commencing the process outlined in 12.5.

12.7. Continuity of Work. Pending the completion of the procedure set out in this clause, work shall continue without interruption. No party shall engage in provocation action and pending the resolution of the dispute the status quo shall apply. The rights of individuals or parties shall not be prejudiced by the fact that work has continued under this process normally and without interruption.’

[6] FWA’s powers to deal with a dispute are limited by the terms of the dispute procedure in the Agreement. So much so is evident by the express words of s 739(3) of the Act:

‘(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.’

With that in mind, on its face, subclause 12.6 above, read in conjunction with subclause 12.5, would seem to preclude FWA from ‘determining’ this dispute unless there is consent from both parties; that is, by reference to ‘determination if agreed’ - the proviso in subclause 12.5. However, as no issue was taken by Offshore Marine in respect to this point, I have taken it to have consented to my determination of the matter and I shall proceed to do so on that presumption.

THE DISPUTE

[7] The dispute concerns the interpretation of cl 26 of the Agreement and Mr Rahman’s view (contrary to that of Offshore Marine as described above at para 3) that his workers’ compensation claim is covered by the Seacare Scheme and not the Workers’ Compensation and Injury Management Act 1981 (WA) (‘the WA Workers’ Compensation Act’). It is relevant to note that notwithstanding Offshore Marine’s alternative view, it has provided benefits, and applied conditions to Mr Rahman, in respect to his injury, as if the Seacare Scheme did apply. However, as will be seen from its later submissions, it argues that, as a matter of law, it cannot declare that Mr Rahman’s injury was covered by that Scheme.

[8] Shortly stated, Mr Rahman relies on cl 26 of the Agreement which I set out hereunder:

‘CLAUSE 26 NAVIGATION ACT, SEAFARERS REHABILITATION AND COMPENSATION ACT

26.1. Nothing in this Agreement shall be construed as limiting the rights of any Officer under the Navigation Act 1912 (Nav Act) as amended.

26.2. The Nav Act, as amended and Marine Orders, apply to Officers engaged under this Agreement.

26.3. The Seafarers Rehabilitation and Compensation Act 1992 and Regulations (SRC Act) apply to Officers engaged under this Agreement.

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 connection 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.

26.5. The Employer will provide written advice to the AMOU to the effect that each vessel is insured for the SRC Act requirements whilst engaged in activities covered by this Agreement.’

[9] Offshore Marine submitted that cl 26 of the Agreement cannot apply to Mr Rahman’s circumstances because of s 19(1) of the Seafarers Act which is an exclusion provision in respect to prescribed ships which are engaged on an intra-state voyage. The provision is as follows:

‘19 Application of Act

(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.’

[10] I interpose to note that there can be no doubt that at the time of Mr Rahman’s injury he was employed on an intra State voyage - from Fremantle to Barrow Island, Western Australia. Section 19(1)(a) also provides that the Seafarers’ Act applies to the employment of employees on any prescribed ship that is:

‘(a) an offshore industry vessel in relation to which a declaration under sub-section 8A(2) of the Navigation Act is in force; or

(b) a trading ship in relation to which a declaration under sub-section 8AA(2) of that Act is in force.’

Relevantly, no such declaration, as required by s 19(1)(a), has been made.

THE PROCEEDINGS

[11] During the proceedings on 13 April 2012, Mr R Armarego, Offshore Marine’s Occupational Health and Safety Manager, said this:

‘It’s a matter of which place do we put it in in terms of the claim. And the advice that we’ve got on the nature of the work that was being done by the vessel, that the claim is to be reposited against a state based Worker’s Compensation scheme. Notwithstanding that fact, we are still honouring the provisions of the agreement, and the provisions of the agreement are that we pay entitlements as we would if it was under a Seafarer’s claim.

So, from my perspective, I find this a bit frustrating, to be honest, that we are honouring the agreement. We are providing all of the provisions as per the legislation that Mr Rahman is referring to. However, we are legally bound, at this point in time, to make the claim under the state based Worker’s Compensation. Now if Mr Rahman is able to provide advice to the contrary, then certainly we will consider it. But in terms of what is listed today, you’ve certainly got out commitment that we’ll be paying full entitlements.’

[12] Mr Rahman said that this was the first time he had heard that his injury would be treated in this way. However, he still believed it left open the question of which jurisdiction investigated his injury. Mr Bolton, Solicitor for Offshore Marine, acknowledged that there were significantly less benefits payable under the WA Workers Compensation Act compared to the Seacare scheme. However, Mr Rahman would not be disadvantaged. He stressed that Offshore Marine cannot make the Seafarers’ Act apply when it cannot legally apply and it cannot ‘contract out’ of the WA legislation. Moreover, the enterprise agreement cannot make the Seafarers’ Act apply.

[13] Mr Bolton, summarised Offshore Marine’s submissions as follows:

‘1.1 The AAT has jurisdiction to review the Respondent’s decision to reject the claim made under the Seafarers’ Act.

1.2 FWA does not have jurisdiction to review the Respondent’s decision to reject the claim made under the Seafarers’ Act.

1.3 If the submissions made at subparagraphs 1.1 and 1.2 are wrong, the Respondent says that;

• The Seafarers’ Act does not apply to the claim;



• The WCIM Act does apply to the claim;



• The parties to an enterprise agreement cannot have the effect of requiring the relevant parties to comply with the provisions of the Seafarers’ Act of at law the Seafarers’ Act does not apply; and



• The Enterprise Agreement cannot prevent the operation of the WCIM Act, as there is no statutory power for it to do so.’

[14] In addition, Mr Rahman sought to challenge the position of his vessel at the time of the accident. He sought an undertaking from Offshore Marine that it will honour every obligation under the Seacare Scheme until he reaches the age of 65. Offshore Marine was not prepared to give such an open ended commitment. There was no need to provide Mr Rahman with a letter because the terms of the enterprise agreement were being honoured by Offshore Marine and there could be no suggestion to the contrary. Mr Bolton raised the issue of costs if his client was brought back to the Tribunal in similar circumstances.

[15] The matter was adjourned to allow Mr Rahman to consider written advice as to Offshore Marine honouring its obligation under the Agreement and for him to take further advice about the matter in light of that information.

[16] On 12 June 2012, Mr Rahman again sought FWA’s involvement in making orders as follows:

‘I am seeking from FWA: From the above clauses of the current Collective Agreement I seek that FWA to give order to OMS to provide me with:

1. a written advice letter as per clause 26.5 above that my vessel PB Konui was/is insured for the Seafarers Rehabilitation and Compensation Act requirements while engaged in activities covered by this EBA.

2. consider my injury compensation as per clause 26.3 and 26.4 under Seafarers Rehabilitation and Compensation act (SEACARE scheme)’

[17] Mr Bolton put that nothing had changed since the last hearing and Offshore Marine relied on its earlier submissions. In any event, Mr Rahman could apply to the ADT if he had any issue with his worker’s compensation claim. It was not a matter for FWA.

[18] Mr Rahman said that despite Offshore Marine’s assurances, he had suffered a number of injustices such as:

• he was not given proper medical attention;



• his injury was not properly reported;



• he was threatened with dismissal if he kept insisting on a proper investigation of the incident;



• lawyers he had engaged would then decline to take up his case; and



• he had not been assisted by the Union.

[19] Mr Bolton foreshadowed a costs application should Mr Rahman’s claim be unsuccessful.

CONSIDERATION

[20] There is no doubt, that by virtue of s 26.3 of the Agreement that the Seafarer’s Act and its Regulations, applies to officers under the Agreement and would have applied to Mr Rahman had he been injured on a vessel whose voyage is defined by s 19(1) of the Seafarers’ Act or his ship had been declared for the purposes of s 19(1)(a) of that Act. However, that is plainly not the situation here.

[21] In my opinion, Mr Rahman’s contention cannot be sustained, as a matter of law and statutory interpretation. If the Seafarers’ Act expressly excludes the vessel upon which he received his injury, then it logically follows that the Seacare Scheme cannot have application. Of course, this does not mean that Mr Rahman is denied protection as far as his worker’s compensation rights are concerned.

[22] As I apprehend the effect of Mr Rahman’s submission, it is that s 19(1) of the Seafarers’ Act is, in some way, displaced or inapplicable because of cl 26 of the Agreement. This is a misconception. Given the factual circumstances and the statutory background to this matter, the terms of the Agreement cannot override the express intention of the Seafarers’ Act. As a consequence, FWA has no power to make orders requiring the employer, to declare that the vessel he was on at the time of his injury, was covered by the Seafarers’ Act or that his injury compensation arises under that Act.

[23] In any event, it is tolerably clear that Offshore Marine has complied with its obligations under cl 26.4 of the Agreement to treat Mr Rahman’s circumstances and to pay his workers’ compensation entitlements as if the Seafarers’ Act applied. It has given undertakings to Mr Rahman and to FWA that to the extent there is any shortfall in entitlements paid to Mr Rahman under the WA Workers’ Compensation Act, then these would be made up. Mr Rahman does not dispute that this has occurred and I have no reason to doubt Offshore Marine’s bona fides in that regard. However, I agree with Mr Bolton that there is a legal impediment to applying the Seafarers’ Act to Mr Rahman’s circumstances.

[24] Moreover, the beneficial intent of cl 26.4 of the Agreement seems to be entirely directed to ensuring employees in Mr Rahman’s circumstances are provided with consistent and superior benefits that might otherwise apply if the Seafarers’ Act did apply. There is simply no need for Offshore Marine to give Mr Rahman a letter confirming what it is obliged to do, and has done, according to the terms of the Agreement. Given these circumstances, I have difficulty in identifying what the dispute is really about.

[25] Even assuming that FWA has jurisdiction to deal with Mr Rahman’s dispute, I do not understand what Mr Rahman is complaining about. As I have said, he is being treated as if the Seafarers’ Act applied. He can make an application to the AAT if he is dissatisfied with any decision or action taken in respect to his workers’ compensation claim.

[26] Regrettably, he has been using his appearances in the Tribunal to make wild, unsubstantiated - even criminal - allegations against unnamed persons. Obviously, these are not matters which arise under the terms of the Agreement; nor are they matters which can be properly brought before FWA under the Fair Work Act. If he has complaints of a criminal nature, then they should be brought to the attention of the appropriate authorities.

[27] That said, in light of the above observations, I would, as a matter of discretion, decline to make any recommendation or order under s 739 of the Act. In any event, the application is dismissed for want of jurisdiction, pursuant to s 587(1) of the Act. An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr M Rahman

Mr B Bolton for the respondent

Hearing details:

2012
SYDNEY
12 June

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