Court challenge

Ocean Peace - Photo courtesy Geelong Advertiser

Maritime unions challenge the Howard government's IR laws, in defence of exploited seafarers on our coast and Australian jobs

The growing death toll of foreign seafarers in our coastal waters highlights the need for Australian work laws to cover crew in the domestic trade.

Three seafarers have died in recent months in tragic shipboard accidents that expose the lack of safety or accountability on board many Flag of Convenience Ships of Shame, Dean Summers, International Transport Workers' Federation, Australia reports.

An electrician perished on board the Probo Panda at anchor off Gladstone, last year; a Ukrainian seafarer was decapitated while loading magnesium at Groote Eylandt in April and one of two Filipino crew washed overboard off the FOC Cypriot-flagged Aristoras off Portland in heavy weather became another statistic.

At the same time police escorted MUA Tasmania Secretary Mick Wickham off the Ocean Peace at Port Burnie in April for attempting to help Filipino crew on board (see box).

Foreign seafarers have no rights at work - which is exactly why Australian shippers and exporters charter these cheap, sub-standard ships. As well as causing tragic loss of life this gross exploitation of workers impacts on Australian seafarers, whose jobs are being lost on the coast.

Internationally the MUA has played a key role in finalising a Bill of Rights for seafarers, which will be due for ratification later this year. Nationally the union has joined with the Australian Institute of Marine Engineers (AIMPE) to challenge the Federal Government workplace laws that remove any protection for ships employing foreign guest-worker crew in our domestic coastal trade.

The Howard government's IR regime not only takes away the Industrial Relations Commission's right to cover Australian workers, it overthrows the maritime unions' High Court win to have the commission make awards to protect foreign crew working on the Australian coastal trade as guest workers.

In April both unions challenged this action in the High Court.

Meanwhile, National Secretary Paddy Crumlin has written to all politicians emphasising the importance of the move.

The letter outlines the history of former Australian vessels being flagged offshore and brought back onto the coastal trade with guest workers.

"The history of each vessel tells the same story. The vessels (MV CSL Pacific, MV Stadacona, MV Ikuna and MV Hakula) were crewed by Australians and flew the Australian ensign. At this time the vessels were licensed to operate in the Australian coasting trade and provided their employees with Australian terms and conditions of employment."

Exploiting a loophole in the Navigation Act all four vessels now trade on the Australian coast under permits issued by the minister for transport. They operate in the same trade that they did before they replaced Australian seafarers with foreign crew on inferior terms and conditions of employment.

The shipowners pay no superannuation, payroll tax or Seacare (a specialised workers compensation insurance scheme for seafarers).

Two years ago, in the wake of the Yarra dispute in Port Pirie where crew bravely barricaded themselves on board the vessel in an attempt to prevent the ship being flagged out, the maritime unions took the shipowners CSL Pacific Shipping Inc all the way to the High Court.

The unions won -despite the government backing the foreign shipowner in the courts.

The High Court ruled that the Australian Industrial Relations Commission had jurisdiction to make an award setting employment conditions of non-citizen crew members on foreign registered ships in respect of voyages to or from a port in Australia (Re Maritime Union of Australia & Ors; Ex Parte CSL Pacific Shipping Inc (2003) 214 CLR 397).

The Commission subsequently rejected CSL's arguments for non-regulation of their employees (CSL Pacific Shipping Inc v Maritime Union of Australia (2003) 118 IR 293). The matter went before a Full Bench of the Commission where the unions are seeking an award setting fair minimum terms and conditions for crew working in Australian waters. But the Commission refused to make awards and the unions subsequently appealed to the full bench. Due to the changes to the role of the commission under Howard Government's changes to industrial relations laws, the full bench ruled in May that it could not determine the matter.

In his letter to Australian politicians the national secretary stressed that the domestic shipping trade is a domestic matter: "Coastal shipping is part of Australia, part of the Australian commercial market, and certainly part of the Australian labour market," he said. "It is not a foreign market under any definition."

No other Australian workers have to compete with workers on a wages and conditions regime that equates to that of their country of origin. Employers bringing in foreign process workers, airline pilots, train drivers or truck drivers all must pay Australian wages and conform with Australian employment conditions for that labour. But not ships' crew.

"Coastal shipping as an industry, and seafarers as an occupation, is, regrettably the exception," said the national secretary. "And the laws that are to come into effect codify this arrangement."

Work Choices Regulation 1.1 of Division 1 of Part 2 of Chapter 2 and Regulation 2.9 of Division 7 of Part 2 of Chapter 7 are specifically written to overturn the court rulings and deprive the unions of their right to seek award regulation of these employees.

"This must be stopped," he said. "It grants foreign employers of non-citizens an unfair competitive advantage as against Australian employers, and prevents Australian employees from obtaining this work. It is a sad day when the Australian government prefers to provide jobs to non-citizens over Australians."

The High Court will hear the matter soon after it hands down its decision on the main states' challenge..

"It is impossible not to notice a connection between fatalities/serious accidents and the increase in FOC shipping in Australia," said Dean Summers. "While even one accident is too many, any increase should be alarming."