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Proposed draft Marine Order 11—change summary

Proposed draft Marine Order 11 (Living and working conditions on vessels) Amendment Order 2021 is open for external consultation until 14 March 2021.

Marine Order 11 (Living and working conditions on vessels) 2015 (MO11) provides for matters concerning the living and working conditions for seafarers on board vessels and gives effect to the Maritime Labour Convention 2006 (MLC). This Order applies to regulated Australian vessels and foreign vessels. 

Key changes

In 2018, the International Labour Organization approved amendments to the MLC, relating to the protection of seafarers’ wages and entitlements while they are held captive on or off the ship as a result of acts of piracy or armed robbery against ships. Australia is implementing these through amendments to MO11. 

A summary of the MLC amendments are:

  1. ensure seafarers’ employment agreement continues to have effect while a seafarer is captive due to acts of piracy or armed robbery against ships
  2. ensure wages and other entitlements continue for the period of captivity
  3. ensure entitlement to repatriation does not lapse due to captivity. 

Background information and making a submission 

Read about why we are making these changes and use our online form to make a submission.

Commencement

The anticipated effect date for the amended order is 01 June 2021. The table below compares the current Marine Order 11, 2015 and the proposed draft amendment Marine Order 11, 2021.

Changes table

Existing text of Marine Order 11 (Living and working conditions on vessels) 2015 The draft proposed amendments to Marine Order 11 (Living and working conditions on vessels) 2021 Reason
Division 1: General

Name of Order

This Order is Marine Order 11 (Living and working conditions on vessels) 2015. 

  1. Name of Marine Order: This Order is Marine Order 11 (Living and working conditions) Amendment Order 2021.
  2. Commencement: This Order commences on 1 June 2021.
  3. Amendment of Marine Order: Schedule 1 amends Marine Order 11 (Living and working conditions on vessels) 2015.
Gives effect to the amendment order.

Definitions In this Order:

adverse action has the same meaning as in section 342 of the Fair Work Act 2009.

[1] Section 4, before definition of adverse action insert act of armed robbery against vessels means any unlawful act of violence or detention, or any act of depredation, or threat (other than an act of piracy) that is: (a) directed against a vessel, or against persons or property on board the vessel; and (b) done in a place within the jurisdiction of any country. act of piracy has the same meaning as in section 51 of the Crimes Act 191 Inclusion of the additional definitions provides clarity to give effect to the MLC amendments.

Note: Enabling legislation for Marine Orders — Part 14: Accommodation, Issue 1 was repealed by the Navigation (Consequential Amendments) Act 2012.

The text of the Order is available on the ComLaw website.

[2] Subsection 6(6), note 

substitute 

Note: Enabling legislation for Marine Orders — Part 14: Accommodation, Issue 1 was repealed by the Navigation (Consequential Amendments) Act 2012.

The text of the Marine Order is available on the Federal Register of Legislation website

The amendment to this note provides the correct location of the text.

 

Existing text of Marine Order 11 (Living and working conditions on vessels) 2015 The draft proposed amendments to Marine Order 11 (Living and working conditions on vessels) 2021 Reason
Division 4: Engagement and working conditions of seafarers

27 Wages

  1. The owner of a vessel must pay each seafarer:
    1. at intervals of no more than 1 month; and
    2. in accordance with the work agreement.

Penalty: 50 penalty units.

  1. The owner must give the seafarer an account, at least monthly, of:
    1. the payments due; and
    2. the period to which each payment relates; and
    3. the amounts paid, including wages and additional payments; and
    4. details of all deductions from the gross amount of wages and additional payments.

Penalty: 50 penalty units.

  1. The owner of a vessel must:
    1. establish a system for enabling a seafarer to send a proportion of the seafarer’s earnings to the seafarer’s family by bank transfer or similar means; and
    2. ensure the payments are made directly to the person named by the seafarer and on time.

Penalty: 50 penalty units.

(3A) For subsection (3), if a proportion of the seafarer’s earnings are sent by bank transfer or similar means, the rate of any currency exchange must be the exchange rate published by the Reserve Bank of Australia for the day transfer occurs.

  1. An offence against subsection (1), (2) or (3) is a strict liability offence.
  2. A person is liable to a civil penalty if the person contravenes subsection (1). Civil penalty: 50 penalty units.
  3. The owner may charge a reasonable amount for providing the service mentioned in subsection (3).

[3] Subsections 27(3A) to (6) 

substitute 

  1. For subsection (3), if a proportion of the seafarer’s earnings are sent by bank transfer or similar means: 
    1. the rate of any currency exchange must be the exchange rate published by the Reserve Bank of Australia for the day transfer occurs; and 
    2. the owner may charge a reasonable amount for providing the service. 
  2. An offence against subsection (1), (2) or (3) is a strict liability offence. 
  3. A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3). 

Civil penalty: 50 penalty units. 

  1. If the seafarer is held captive on or off a vessel as a result of an act of piracy or act of armed robbery against vessels, an owner of a regulated Australian vessel must continue to comply with this section until the death or repatriation of the seafarer. 
  2. Subsection (7) applies whether or not the seafarer’s work agreement has expired or terminated, or been suspended, during captivity. 

27(4) replaces 27(3A) of the current order and provides clarity.

Addition of 27(7) and 27(8) gives effect to MLC amendments.
 

31 Repatriation

  1. The owner of a vessel must ensure that a seafarer is entitled to repatriation, at no cost to the seafarer, in any of the following circumstances:
    1. the seafarer has worked continuously on the vessel for at least 11 months;
    2. the seafarer’s work agreement expires;
    3. the seafarer’s work agreement is terminated:
      1. by the owner of a vessel; or
      2. by the seafarer for justified reasons; or
      3. because the seafarer is no longer able to carry out his or her duties under the work agreement; or
      4. because the seafarer cannot be expected to carry out his or her duties in the specific circumstances; or
      5. because of illness, injury or other medical condition for which the seafarer must be repatriated and is medically fit to travel; or
      6. because of wreck or foundering;
    4. the owner of a vessel is unable to fulfil his or her legal or contractual obligations to the seafarer as an employer because of:
      1. insolvency; or
      2. sale of the vessel; or
      3. change of the vessel’s registration; or
      4. unforeseen circumstances beyond the owner’s control;
    5. the vessel is on its way to a war zone to which the seafarer does not consent to go;
    6. termination or interruption of employment:
      1. in accordance with an industrial award; or
      2. in accordance with a collective agreement. 
  2. A seafarer under 18 years is also entitled to repatriation at no cost to the seafarer if the seafarer:
    1. has worked on a regulated Australian vessel for at least 4 months on the seafarer’s first foreign voyage; and
    2. is unsuited to life at sea.
  3. For subsection (2), the repatriation of the seafarer is to be:
    1. from the first port of call where there are Australian consular services; and
    2. to the home port mentioned in the seafarer’s work agreement.

[4] Paragraph 31(1)(f) 

substitute 

(f) termination or interruption of employment: 

  1. in accordance with an industrial award; or 
  2. in accordance with a collective agreement; 

(g) the seafarer has been held captive on or off the vessel as a result of an act of piracy or an act of armed robbery against vessels. 

Addition of 31(1)(g) gives effect to the MLC amendment.

34 Timeframe for claim

  1. A seafarer may claim repatriation benefits within:
    1. 2 years; or
    2. another reasonable time mentioned in the work agreement, award or collective agreement that applies to the seafarer.
  2. If the seafarer does not claim the benefit within the time mentioned in subsection (1), the owner of a vessel may refuse to pay the claim.

[5] Subsection 34(2) 

substitute

  1. If the seafarer does not claim the benefit within the time mentioned in subsection (1), the owner of a vessel may refuse to pay the claim unless repatriation is following an act of piracy or an act of armed robbery against vessels. 
34(2) amended to give effect to the MLC amendment.
Schedule 1 Seafarer recruitment and placement service—conditions of registration (section 17)  Schedule 1 Seafarer recruitment and placement service—conditions of registration (section 17)   

The conditions of registration for a seafarer and placement service are that: 

  1. AMSA may undertake, on provision of reasonable notice, an audit to determine whether the service complies with the conditions of registration; and 
  2. the service may charge a fee for a service to a seafarer only if it is for obtaining any of the following: 
    1. a medical certificate of fitness in accordance with Marine Order 9 (Health — medical fitness) 2017; 
    2. a seafarer’s qualification in accordance with Marine Order 70 (Seafarer certification) 2014; 
    3.  a national seafarer’s record book; 
    4. a passport; 
    5. a travel document, other than a visa, that is necessary for the duties that the seafarer is going to undertake. 

[6] Schedule 1, subparagraph (b)(i) 

substitute 

  1. a medical certificate of fitness in accordance with Marine Order 76 (Health — medical fitness) 2017; 
This change is to give effect to MO76 as it has replaced MO9.
Schedule 3 Seafarer’s work agreement information (subsection 21(1))     Schedule 3 Seafarer’s work agreement information (subsection 21(1))  
  1. The seafarer’s full name, address and date of birth, or, if the seafarer’s date of birth is unknown, the seafarer’s estimated age.
  2. The seafarer’s birthplace.
  3. The vessel owner’s full name and address. 
  4. The vessel operator’s full name and address.
  5. The employer’s full name and address.
  6. The place where the seafarer’s employment agreement is entered into.
  7. The date the seafarer’s employment agreement is entered into.
  8. The role the seafarer is employed or engaged to do.
  9. The amount of the seafarer’s wage.
  10. The amount of paid leave or the formula used for calculating it.
  11. The terms for the termination of the agreement and conditions of termination.
  12. The date for expiry of the agreement, if any.
  13. If the agreement has been made for the duration of a single voyage:
    1. the port of destination;
    2. the time that has to elapse after arrival at the port before the agreement expires.
  14. Any health or social security protection benefits to be provided for the seafarer by the owner of the vessel.
  15. The seafarer’s entitlement to repatriation.
  16. The seafarer’s home port.
  17. A mention of the collective agreement or award that applies to the seafarer.
  18. If the collective agreement applies to the seafarer — how the seafarer can obtain a copy of the agreement.
  19. A list of the geographic location of war zones, if any. Note: Information on zones that may be classified as war zones can be found on the International Transport Federation website.

[7] Schedule 3, clauses 15 to 19 

substitute 

  1. The seafarer’s entitlement to payment of wages and other benefits under the work agreement if the seafarer is held captive on or off the vessel as a result of an act of piracy or an act of armed robbery against vessels. 
  2. The seafarer’s entitlement to repatriation including repatriation following an act of piracy or an act of armed robbery against vessels. 
  3. The seafarer’s home port. 
  4. A mention of the collective agreement or award that applies to the seafarer. 
  5. If the collective agreement applies to the seafarer — how the seafarer can obtain a copy of the agreement. 
  6. A list of the geographic location of war zones, if any.
15 added and 16 (ex15) amended to give effect to the MLC amendments.
Schedule 12 Official log book—matters that must be entered (section 97(1))      Schedule 12 Official log book—matters that must be entered (section 97(1))   

Schedule 12 Official log book — matters that must be entered 

(section 97(1)) 

  1. Any conviction by a court of a seafarer while the seafarer is employed, engaged or working on the vessel and any sentence imposed. 
  2. Any promotion, including: 
    1. the date of the promotion; and 
    2. the rank or position to which the seafarer is promoted; and 
    3. any increase in wages. 
  3. Any misconduct by a seafarer. 
  4. Details of each inspection mentioned in section 53 and section 63(7). 
  5. If a stowaway is discovered on board: 
    1. the person’s full name; and 
    2. the person’s date of birth; and 
    3. the place of the stowaway’s boarding; and 
    4. the place the stowaway is put to shore; and 
    5. any proceedings taken against the person and the result of the proceedings. 
  6. If the vessel is involved in a marine incident causing a loss of life or serious injury to a person, the person’s:
    1. full name; and 
    2. age; and 
    3. birthplace; and 
    4. details of the incident. 
  7. Any matter that must be entered into the official log-book by an agreed code of conduct applying to the vessel. 
  8. A list of the effects of a deceased seafarer. Note: The master may make entries in the official log-book about matters that are not required by the Navigation Act, regulations or marine orders.

[8] Schedule 12, clause 4 

substitute 

  1. Details of each inspection mentioned in sections 54 and 64. 
Updated to reflect the correct sections.

Last updated: 

Monday 15 February 2021