Who is covered
The Seacare scheme is a national scheme of workers’ compensation and occupational health and safety arrangements for seafaring employees under certain circumstances.
Which workers’ compensation scheme applies
If an Australian employee in the maritime industry with a work-related injury or illness intends to make a claim for workers’ compensation, it is first necessary to determine which workers’ compensation scheme applies.
The Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act) establishes a rehabilitation and workers’ compensation scheme for seafarers. However, the Seafarers Act does not apply to all seafarers.
We provide general guidance about when the Seafarers Act applies. This guidance is not legal advice and should not be relied upon as a complete statement of the law. A person who may be affected by the Seafarers Act should seek their own legal advice.
Assessing if coverage by the Seafarers Act applies
The following factors assist in assessing whether there is coverage by the Seafarers Act.
If the answer to each of the following statements is ‘yes’, the Seafarers Act is likely to apply.
1. The person is an employee
An employee may be a seafarer or a trainee.
Seafarer defined
Under the Seafarers Act, a ‘seafarer’ is a person who is employed, engaged or works in any capacity on board a prescribed ship (including that of master) and who works on the business of the ship (from the Navigation Act 2012).
A seafarer does not include:
- a licensed pilot of the ship (including a person acting as the pilot)
- an owner of the ship or a person representing the owner (except the master)
- law enforcement personnel (in their capacity as law enforcement personnel)
- If the ship is a special purpose vessel – special personnel in relation to the vessel
- a person temporarily employed on the ship while it is in port
- a person prescribed by regulations under the Navigation Act.
A contractor is not regarded as a seafarer. Whether or not a seafarer is an employee or a contractor will depend on the nature of the relationship between the parties. The following factors generally indicate an employee-employer relationship:
- the worker performs work under the direction and control of the employer on an ongoing basis
- the worker works standard or set hours, has an ongoing expectation of work, and is paid regularly
- tools and equipment are provided by the employer, or a tool allowance is paid.
Trainee defined
A trainee may be a company trainee or an industry trainee.
A company trainee is a person who is undergoing a training course as required by their employer.
An industry trainee is person undertaking an industry training course approved by the Seacare Authority. The person must be undertaking this training:
- before becoming a seafarer, or
- while not currently employed or engaged as a seafarer, is normally employed or engaged as a seafarer.
While attending the approved industry training course, the industry trainee is taken to be employed by the Seafarers Safety Net Fund and through this fund has access to workers’ compensation.
See Seacare scheme guidance on coverage (PDF, 210.0 KB).
2. The employee is on a prescribed ship
A prescribed ship is a ship:
- registered in Australia
- used to engage in coastal trading under a general licence
- used to engage in coastal trading and registered under an emergency licence in the Australian General Shipping Register
- which the majority of the crew are Australian residents and which is operated by an Australian company or person, or
- that is declared by the Minister to be a prescribed ship under section 3A(1) of the Seafarers Act.
A prescribed ship may also be a ship to which a declaration under the Navigation Act or made by the Seacare Authority applies. A list of ships declared off-shore industry ships and trading ships under the Navigation Act is on the Australian Maritime Safety Authority website. At the date of this publication the Seacare Authority has not made any declarations under sections 19(1C) or 19(1D) of the Seafarers Act.
A prescribed ship is not:
- a Government ship, or
- a ship declared by the Minister not to be a prescribed ship under section 3A(2) of the Seafarers Act.
See Seacare scheme guidance on coverage (PDF, 210.0 KB) for specific references in the legislation and definitions.
3. The prescribed ship is engaged in trade or commerce
The expression ’trade or commerce’ has a wide meaning. For example, it can include the transportation of goods or people for profit or reward, such as would be involved in tourism operations.
Whether a ship is engaged in trade or commerce will depend on the facts of each case and must therefore be considered on a case by case basis.
4. The prescribed ship is engaged in international, inter-state or territory trade or commerce
The prescribed ship must be engaged in trade and commerce:
- between Australia and a place outside Australia
- between two places outside Australia
- among two or more Australian states, or
- within an Australian territory, between an Australian state and a territory, or between two Australian territories.
See Geoscience Australia for information about Australia’s maritime boundaries.
5. There is no exemption in place
The Seacare Authority can exempt some or all people employed on a particular ship from being covered by the Seafarers Act, under section 20A of the legislation.
If the Seacare Authority grants this exemption, the Seafarers Act does not apply to the specified employees on board that ship.
The exemptions which have been granted to date, along with the Intra-State Trade Declaration, are designed to ensure that ships which are only engaged in trade or commerce within one state of Australia (and not in interstate or international trade or commerce) are not covered by the Seafarers Act.
See Exemptions from coverage for details of current exemptions which have been granted.
When coverage by Seacare does not apply
A person working in the maritime industry who does not meet the Seacare scheme criteria, and therefore falls outside the scope of the Seafarers Act, may be able to make a claim for workers’ compensation under the appropriate state or territory workers’ compensation scheme. The employer may also be able to assist with this.
State and territory workers’ compensation schemes
| Jurisdiction | Responsible scheme |
|---|---|
| Australian Capital Territory | ACT WorkCover |
| Queensland | WorkCover Queensland |
| New South Wales | WorkCover NSW |
| Northern Territory | NT WorkSafe |
| South Australia | ReturntoWorkSA |
| Tasmania | WorkCover Tasmania |
| Victoria | WorkSafe Victoria- Victoria WorkCover Authority |
| Western Australia | WorkCover WA |
Amendments to scheme coverage
Enactment of Seafarers Act and injuries before 24 June 1993
The Seafarers Act was enacted in 1992 and commenced on 24 June 1993 to replace the repealed Seamen’s Compensation Act 1911.
The Seafarers Act applies to injuries experienced before 24 June 1993, provided the injury would have been compensable under the Seaman’s Compensation Act 1911 (the Seaman’s Act). Therefore, the injury will be compensable under the Seafarers Act, if it would have been compensable under the provisions of the Seaman’s Act.
Federal Court's decision in Samson Maritime v Aucote
In Samson Maritime Pty Ltd v Aucote (Aucote decision), the Full Federal Court held on 22 December 2014 that the Seacare scheme applies to all 'employees', as defined by the Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act) of a trading, financial or foreign corporation.
The Aucote decision substantially shifted workers' compensation and work health and safety arrangements in the Australian maritime industry. Ships and employees that were historically considered to be covered by state workers' compensation and work health and safety laws are covered by the Commonwealth Seacare scheme.
In response to the Aucote decision, the Australian Government introduced the Seafarers Rehabilitation and Compensation and Other Legislation Amendment Act 2015 (Amendment Act) into Parliament. The Seacare Authority and Minister also granted exemptions and declarations affecting the coverage of the Seacare scheme.
These actions were taken to:
- limit the coverage of the Seacare scheme to what was broadly understood to be the case before the Aucote decision (that the Seacare scheme does not apply to ships engaged in intrastate trade and not engaged in interstate or international trade)
- provide certainty to the maritime industry regarding coverage of schemes.
Seafarers Rehabilitation and Compensation and Other Legislation Amendment Act 2015
The Seafarers Rehabilitation and Compensation and Other Legislation Amendment Act 2015 (Amendment Act) amends the coverage of the Seacare scheme from the commencement of the Seacare scheme in 1993 until 26 May 2015 (the date of Royal Assent).
It confirms that, generally, the Seacare scheme does not apply to employees on ships engaged in intra-state trade or commerce, as was broadly understood to be the case until the Aucote decision up to the date of Royal Assent.
The Amendment Act does not disturb any claims for workers' compensation under the Seacare scheme made before 26 February 2015 (the date it entered Parliament). Any employee who provided notice of injury before 26 February 2015, but had not made a claim for workers' compensation by that date, will also not be affected so long as the notice of injury was provided for the purpose of making a claim under the Seacare scheme and they have not made a claim for compensation under state legislation.
The aim of this piece of legislation is to restore certainty to maritime industry employers and employees regarding past actions taken and compensation payments received under the Seacare scheme.
More information
The Seacare Authority has published scheme guidance to help people understand coverage arrangements. See Seacare scheme guidance on coverage (PDF, 210.0 KB) for references in the legislation and definitions.
For more information or to further discuss coverage, contact the Seacare Authority helpdesk on 02 6275 0070 or email seacare@comcare.gov.au.
A person who may be affected by the Seafarers Act should always seek their own legal advice in relation to coverage.