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Maritime worker health and safety - still on choppy waters

Maritime worker health and safety - still on choppy waters
King & Wood Mallesons April 9 2018

In this update we highlight the findings of a recent study, a Senate inquiry and the stalled efforts to bring about greater harmony between Australian maritime and general industry work health and safety laws.

Maritime industry safety culture study

Although a recent study that looked into seafarers’ safety and wellbeing found an overall positive safety culture exists, the investigation also highlighted a range of risk factors and negative behaviours that persist in the industry.

Some of the key findings of the study, that involved 1026 seafarers from 23 flag States, were:

high work demands, including long working hours in uncertain operational conditions and the requirement to maintain high levels of vigilance, led to mental ill health, sleep and fatigue problems, near misses and injuries; and
wellbeing and mental health were better when seafarers perceived that their organisation prioritised their health and safety over operational cost and performance and in the presence of safety leadership and a stable crew.

Drawing on the key findings and research evidence and experts’ opinions, the report suggested a number of recommendations including improving work procedures, checklists and general safety knowledge, ensuring the implementation and monitoring of an effective fatigue management system and increasing the availability of work design and organisational support resources.

The complexity and proposal for greater harmony

These insights in the determinants and consequences of safety culture in the maritime industry come at a time when determining the work, health and safety laws that apply to maritime workplaces and activities in Australian waters remains riddled with complexity. While there has been some recent Australian Government proposals to bring about greater harmony with the country’s largely harmonised general work, health and safety laws, it appears little consensus or real progress has been achieved.

The following are the principal regimes, most of which have undergone recent reforms, that have a direct or indirect impact on which work, health and safety laws apply to 'vessels' in Australian waters:

Navigation Act 2012 (Cth);
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) (OPGGSA);
Modernised State and Territories Work Health and Safety laws; and
Registration of ships in Australia and regulation of coastal trading within Australia.

These recent reforms have achieved some harmonisation, including the implementation of a WHS regime under the Marine Safety National Law that generally reflects and complements the principles of the State and Territory WHS laws. Other changes over the past six years to the OPGGSA have also achieved some elements of harmonisation with the State and Territory WHS laws with respect to the range of enforcement mechanisms and level of penalties.

However, charting the turbulent waters generated by the interplay between these acts and regimes still requires consideration of many factors, including registration and ownership of a vessel, the type of voyage and operation being undertaken by the vessel, the declarations under new and repealed laws and the level of connection between a vessel and a State or Territory.

One of main problems that remains is the application and operation of the Maritime OHS Act. The Maritime OHS Act was based on the Occupational Health and Safety Act 1991 (Cth) which was replaced by the Work Health and Safety Act 2011 (Cth) (WHS Act). 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.

The Government’s present preferred reform option involves repealing the Maritime OHS Act and amending the WHS Act to extend its coverage to any vessel or structure presently covered by the Maritime OHS Act. Efforts to pass legislation to achieve this result have, however, stalled and met with industry opposition.

Offshore industry WHS inquiry

Further, last month an inquiry was commenced by the Senate Standing Committee on Education and Employment into the work health and safety of workers in the offshore petroleum industry. The inquiry will look into the scope and necessity for amending and updating any legislative inconsistencies in the relevant work health and safety scheme, including:

any provisions in the legislation which need to be updated; and
providing for appropriate consistency between the OPGGSA and the WHS Act.

The committee is scheduled to report back by 14 August 2018.
King & Wood Mallesons - Philip Willox and Nicholas Beech