Thinking | 27 September 2022

Australian maritime WHS laws: seeking harmony

As general harmonisation of Australian Work Health and Safety (WHS) laws has largely been achieved, determining the laws that apply to offshore and maritime workplaces and activities in Australian waters remains riddled with complexity.

In this article, we examine the jigsaw puzzle that now applies and the future direction to bring about greater harmony with the country's general WHS laws.

Relevant regulatory regimes

There are several statutory regimes that can have a direct or indirect impact on workplace health and safety in Australian waters.

Charting the turbulent waters generated by the interplay between these regimes requires consideration of many factors, including registration and ownership of a vessel, the type of voyage and operation being undertaken by the vessel and declarations under new and repealed laws.

The key regimes that govern or regulate vessels and maritime activities in Australian waters are as follows:

the Navigation Act 2012 (Cth) (Navigation Act), in general, covers Regulated Australian Vessels (RAV) and all foreign vessels.
vessels that are not covered by the Navigation Act are covered by the Marine Safety (Domestic Commercial Vessels) National Law Act 2012 (Cth) (Marine Safety National Law). Specifically, the Marine Safety National Law covers 'domestic commercial vessels'.
the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act) is the principal legislation regulating offshore petroleum activities in Commonwealth waters. Relevantly, the OPGGS Act applies exclusively to a ‘facility’ located in Commonwealth waters and includes a requirement for a safety case to be prepared.
a similar regime to that under the OPGGS Act applies in coastal waters by virtue of complementary legislation in most State and Territory jurisdictions.
the modernised work health and safety laws introduced across Australia^[1] (WHS Laws).

The work health and safety regimes

If a vessel is covered by the Navigation Act, the Marine Safety National Law, the OPGGS Act or WHS Laws, there are specific provisions within those laws that impose work health and safety duties and responsibilities.

However, for many vessels and the workers onboard, particularly those not solely operating within one State or Territory, the principal source of work safety and health duties is the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) (Maritime OHS Act).

The Maritime OHS Act provides its own separate criteria to determine which vessels it covers and although to some extent it aligns with the Navigation Act and Marine Safety National Law, it is sufficiently peculiar that it must be considered in addition to the applicability of those and other potentially applicable laws.

Occupational Health and Safety (Maritime Industry) Act

The Maritime OHS Act applies to employees on board the following specific vessels:

a 'prescribed ship' and 'prescribed unit' that is engaged in trade and commerce:
- between Australia and places outside Australia;
- between two places outside Australia; or
- within Australia but not intrastate.
an 'offshore industry vessel' which was covered by a declaration under s 8A(2) of the Navigation Act 1912 (Cth) or is covered by a declaration under section 6(3AB) of the Maritime OHS Act;
a ‘trading ship’ which was covered by a declaration under s 8AA(2) of the Navigation Act 1912 (Cth) or is covered by a declaration under section 6(3AB) of the Maritime OHS Act; and
a vessel that is used to engage in coastal trading under a:
- general licence;
- temporary licence if the vessel is registered in the Australian International Shipping Register; or
- emergency licence if the vessel is registered in the Australian General Shipping Register or the Australian International Shipping Register.

Prescribed ship and prescribed unit

A 'prescribed ship' is:

a ship that is registered or required to be registered under the Shipping Registration Act 1981 (Cth); or
a ship that is used to engage in coastal trading under a general licence;
a ship not covered by the above but:
- the majority of its crew are residents of Australia; and
- is operated by a person or business resident in Australia, or an Australian corporation.
a ship that is declared to be a prescribed ship;
not a:
- ship declared not to be a prescribed ship;
- ship or offshore industry mobile unit to which the OPGGS Act

A 'prescribed unit' means:

an offshore industry mobile unit that is not self-propelled and is under tow; or
a vessel or structure declared to be a prescribed unit, but not a vessel or structure declared not to be a prescribed unit

Occupational safety and health duties

An overview of the health and safety obligations under the key regimes and scopes of operation is as follows:

Maritime OHS Act

An overview of the duties is as follows:

duties are applied to operators of a prescribed ship or prescribed unit, employees, contractors, manufacturers, suppliers, and importers of plant (which includes machinery, equipment or tool, or any component) used, or substances used or handled on a prescribed ship or prescribed unit, and persons unloading or loading a prescribed ship or unit.
an operator of a Prescribed Ship or Prescribed Unit must:
- take all reasonable steps to protect the health and safety at work of employees;
- provide and maintain a working environment (including plant and systems of work) that is safe for employees and without risk to their health and provide adequate facilities for their welfare at work;
- in relation to any workplace under the operator’s control:
  - ensure the workplace is safe for employees and without risk to their health; and
  - provide and maintain a means of access to and from the workplace that is safe for employees and without risk to their health;
- ensure the safety at work of employees in connection with the use, handling, storage or transport of plant or substances;
- give employees the information, instruction, training, and supervision necessary to enable them to perform their work in a way that is safe and without risk to their health;
- take appropriate action to monitor employees’ health and safety at work and the conditions of the workplaces under the operator’s control, maintain appropriate information and records and provide medical and first aid services; and
- take all reasonable steps to develop an occupational health and safety policy.

An operator owes the duties above to contractors on the Prescribed Ship or Prescribed Unit in relation to matters over which the operator has control or would usually be expected to have had control and notwithstanding any contrary agreement with the contractor.

The Maritime OHS Act does not affect the operation of the Navigation Act.

Navigation Act and Marine Orders

The Navigation Act prescribes general duties, in relation to Regulated Australian Vessels (RAVs) and foreign vessels, relevant to operators, owners and masters.

The Navigation Act also provides the platform under which a number of Marine Orders are made. These Marine Orders deal with various issues in depth with extensive prescriptive, specified duties. For instance, Marine Order 11 implements the Maritime Labour Convention and sets out the requirements on vessels for, among other things, health protection, medical care, welfare, noise and other living and working conditions on RAVs.

Marine Safety National Law

The Marine Safety National Law imposes a general duty of care on owners of domestic commercial vessels to, so far as reasonably practicable, ensure the safety of the vessel. This duty requires the implementation and maintenance of a safety management system (SMS) and the provision of such information, instruction, training, and supervision to people on board the vessel as is necessary to ensure their safety.

A master of a domestic commercial vessel owes a similar duty in relation to the safety of the vessel and must adhere to the SMS and take reasonable care for his or her own safety and the safety of persons who may be affected by his or her acts or omissions.

The Marine Safety National Law makes it clear that its provisions are not intended to exclude State or Territory laws that relate to workplace health and safety so far as they would otherwise apply in relation to domestic commercial vessels. If there is inconsistency between the Marine Safety National Law and WHS Laws, then the latter will prevail.

OPGGS Act: facility

The WHS regime for offshore facilities is a general duties regime using a safety case approach. It is generally a performance based regime but includes some prescriptive elements.

The key general duty under the OPGGS Act falls on an operator of a facility and requires that they take all reasonably practicable steps to ensure that the facility is safe and without risk to the health of any person at or near a facility and that all activities are carried out safely and without risk to health.

Schedule 3 to the OPGGS Act set out a series of specific duties that must be at all times discharged by facility operators, employers of facility workers, and persons working at or on facilities. These duties include taking all reasonably practicable steps to provide and maintain adequate facilities and to implement and maintain systems of work for the welfare of all members of the workforce at the facility.

Duties are also imposed on manufacturers, suppliers, and importers in relation to facilities, plant, and substances and persons erecting facilities or installing plant.

One of the obligations relating to a facility is the requirement for the operator of the facility to have a safety case covering the facility and the proposed activities, accepted by the national regulator, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), prior to undertaking those activities.

A safety case includes the facility-specific commitments by the operator regarding the arrangements that ensure proper control of risk at the facility and the health and safety of persons at or near the facility. The acceptance of a safety case by NOPSEMA, or compliance by an operator or another person with a safety case that has been accepted by NOPSEMA, does not derogate from the general or specific duties of the operator or person under the OPGGS Act.

Model Work Health and Safety laws

The model WHS Laws impose an overarching duty on a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of workers and other persons.

The duties apply to workplaces that comprise vessels or any State or Territory waters and any installation on the bed of any waters or floating on any such waters.

The primary duty encompasses the provision and maintenance of a work environment without risks to health or safety, safe plant and structures and safe systems of work. It also includes the safe use, handling, storage and transport of plant, structures and substances, the provision of and access to adequate facilities for the welfare of workers, the provision of information, training, instruction or supervision, and monitoring of the health of workers and the conditions at the workplace.

The term ‘reasonably practicable’ has the same meaning as applies under the Marine Safety National Law – see above.

An 'officer' of a PCBU must exercise ‘due diligence’ to ensure that the PCBU complies with its duties and obligations.

The choppy wave of harmonisation offshore

What has been achieved so far?

The problems identifying which work health and safety related laws apply have been known for some time. The issues have been canvassed as part of multiple government reviews and been the subject of submissions and proposals by industry bodies and unions and the government, including proposed amendments to the Maritime OHS Act. However, little real change has actually occurred and no substantive legislative amendments have been agreed or implemented.

One of the persisting core issues relates to the application of the Maritime OHS Act. The Act was based on the Occupational Health and Safety Act 1991 (Cth), which was replaced by the Work Health and Safety Act 2011 (Cth). 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, including in respect to the principal duty of care, duties on officers, consultation, issue resolution, sentencing options and penalties.

Some harmony has been achieved, including the WHS regime under the Marine Safety National Law that generally reflects and complements the principles of the State and Territory WHS laws. Despite this, however, previously agreed amendments to the Marine Safety National Law that would bring the offence provisions in line with those under WHS Laws have not taken effect because they are subject to all jurisdictions adopting the model WHS laws.

Recent changes to the OPGGS Act have also achieved some elements of harmonisation with the WHS Laws with respect to health and safety representatives, consultation, the range of enforcement mechanisms and level of penalties.

The uncertainty regarding the application boundaries of the Maritime OHS Act, Navigation Act and WHS Laws has been expressly acknowledged by regulators. To partially address these uncertainties, a number of Memorandums of Understanding have been entered into that describe the administrative and operational procedure that will be followed in the event of coverage uncertainty.

The way forward

Several reviews are presently underway that may result in amendments to the OPGGS Act, Marine Safety National Law and Maritime OHS Act that should achieve enhanced harmony between the regimes in respect to work health and safety matters.

In instances where the applicable duties or requirements are not presently clear, adopting the approach of complying with the most stringent duties that may apply will be best practice until greater certainty and clarity is provided.

We will keep you informed of developments in this area.

^[1] Other than in Victoria.