The Case for a National Stevedoring Code of Practice - MUA Submission to Safe Work Australia

On behalf of more than 7,000 stevedoring workers across Australia, their families, and tens of thousands of concerned community members, MUA is calling on Safe Work Australia to approve the National Stevedoring Code of Practice in its current form.

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The rates of death and injury in stevedoring have reached crisis levels. During the last six years alone, six workers were killed on Australia’s wharves,[1] with an average death rate of 14.3 workplace deaths per 100,000 workers.[2] The carnage is alarming and cannot be allowed to continue.

Other Australian industries do not suffer anywhere near this level of workplace deaths. The construction industry, for example, had a workplace death rate of 2.8 per 100,000 workers in 2010-11.[3] Meanwhile, the average across the Australian workforce is just 1.05 workplace fatalities per 100,000 workers.[4] These statistics are summarised in graphical form in Appendix 1.

Shockingly, the rate of death suffered by workers in stevedoring is more than double that of permanent members of the Australian Defence Force,[5] including those serving in Afghanistan.

These deaths of waterside workers come on top of many serious and disabling workplace injuries and illnesses. Aside from the obvious personal cost to workers and their families in sustaining these injuries, they also drive up the costs of worker’s compensation in this industry and are unfairly used as a pretext by the industry to move to automation.

The safety crisis in stevedoring

The movement towards better regulation of safety on the waterfront gathered pace in 2010, with three deaths in that year alone. Community outcry began to grow. Safe Work Australia recognised the crisis and brought the stakeholders together to discuss the way forward.

At that time, there was a strong view in the maritime community that safety regulation was the best solution. The stevedoring majors, on the other hand, favoured non-binding guidance material. As a compromise, all parties accepted a Code of Practice (COP).  The MUA has worked in good faith for more than two years to develop the COP together with other stakeholders on the Temporary Advisory Group (TAG) established by Safe Work Australia.

Now that we have reached the end of that process, it is disappointing to see one section of the industry, and some outside parties, attempting to derail the code. The time for debate has passed. The figures show the stark reality. The case for a Code of Practice is strong. The document developed by Safe Work Australia through the TAG deals with what workers in the industry consider to be the unique aspects to safety in the stevedoring industry. In the spirit of compromise, no one party has achieved all of the things they might have wanted. But all stakeholders have had ample opportunity to provide input.

It is time to approve the National Stevedoring Code of Practice and do something positive to stop the continuing deaths on the waterfront.

A code, not guidance material

Consistent with the agreement reached among stakeholders at the outset of this process, the code should be approved as a Code of Practice, not merely as guidance material.

Codes of Practice exist in similar industries such as construction, manufacturing and seafaring. All of these industries have lower fatality rates than the waterfront has.

With the high fatality rates in stevedoring, it is entirely reasonable and appropriate to establish a national Code of Practice. The MUA is still of the view that safety regulation or legislation is required in an industry where there is a fatality rate fourteen times higher than the national average, but the TAG reached a consensus position across all industry stakeholders and we accepted that position. Now, despite this history of compromise and consensus, in front of government and regulators during the stakeholder process, industry representatives have come out calling for the COP to be reduced in stature to guidance material.  

There is already safety guidance material that applies to the waterfront. However, the current situation on the waterfront demonstrates that guidance material is not sufficient or fit for the purpose of fixing the current severe safety crisis on the waterfront.

The Workplace Health and Safety (WHS) Act 2011, which represents the Federal Government’s Occupational Health and Safety policy, does not recognise guidance material as having any standing in the current hierarchy of legislative instruments.

A Code of Practice is the minimum action necessary to improve safety standards in the stevedore industry.

Anything less and we will be letting down the workers in this industry, and their families. They are counting on Safe Work Australia to deliver an effective Code of Practice.

A question of cost?

The MUA was informed through the ACTU via an email from the SWA Secretariat that there will now be a Regulatory Impact Statement (RIS) required on the Code.

In relation to this newly determined requirement, the email read:

For information 

Draft Code of Practice: Managing the Risks of Stevedoring 

Members agreed by majority at the meeting on 14 March 2013 to release the draft model Code of Practice for public comment, noting the Office of Best Practice Regulation (OBPR) had granted an exemption from regulatory impact statement (RIS) requirements. Based on industry raising cost impacts associated with the proposed Stevedoring Code of Practice in an article in the Australian Financial Review on 20 March 2013, the OBPR now considers a RIS will be required. This will delay the release of the draft Code of Practice for public comment until a consultation RIS is prepared.  Further advice will be provided on the timeframe for this.

The MUA is appalled that the OBPR – an independent Government Department – can be swayed by a one-sided, factually incorrect article in the Australian Financial Review into making a decision contrary to the stakeholder processes undertaken by SWA. We reject the requirement for a RIS. The current draft Code of Practice merely interprets the current legislative and regulatory frameworks. There is no extra cost in having a Code of Practice. Industry’s quest to have a RIS is about delaying the implementation of the Code, not about cost.

It is our contention that the arguments relating to cost from industry representatives spring from a misinterpretation of the COP and Marine Orders.

The reality is that any extra cost to stevedores due to the implementation of the Code of Practice would only arise from the code highlighting the requirements of current legislation and regulations. Consequently, additional costs would only occur if the COP brought to a company’s attention the fact that they were not adhering to existing law and had to rectify their behaviour. This is hardly an argument against a Code of Practice.

The provisions relating to the hatchman and cargo space lookout have been long discussed during the formulation of this draft Code of Practice. They can be found in a number of sections of Marine Order 32. Industry has argued that the cargo space lookout and hatchman provisions of the code will result in an extra person per crane gang. This is patently incorrect. 

A hatchman and a cargo space lookout are different functions performed at different times. A hatchman can be the cargo space lookout when a crane has finished operation and workers are lashing or finalising other areas of work in the hold.

Industry representatives claim that the MUA is calling for a hatchman as well as a cargo space lookout for each crane gang, for a total of three members of the crane gang. Current practice in bulk and general stevedoring, where this issue is most crucial, is to have two crane drivers per crane gang: one driving and one acting as the hatchman. The inference from employers that we are calling for three people for each crane gang (two drivers/hatchman positions and an extra cargo space lookout) is wrong. The MUA is not calling for this. The hatchman and the cargo space lookout are required at different times and for different operations - the hatchman for crane operations, and the cargo space lookout for cargo operations that do not involve a crane.

All the MUA is calling for is to have the existing industry standards maintained and clarified. This is not a cost. We make this call because we have had to deal with employers in the stevedoring industry who do not obey the law. Having a Code of Practice to highlight unlawful behaviour should not be considered to be a cost to industry, but a positive clarification and a social contribution

Jurisdictional issues

Safe Work Australia is seeking comment on the jurisdictional issues when workers are performing stevedoring activities on ships in port.

It is well recognised that stevedoring is an example of concurrent jurisdiction. On one hand, the ships, their seaworthiness, and the technical standards of their equipment such as ships’ cranes fall within Commonwealth jurisdiction, and are covered by Marine Orders made under the Navigation Act 1912 (Cth) and administered by the Australian Maritime Safety Authority (AMSA). On the other hand, the stevedoring workers, and their systems of work, fall under the relevant state or territory Workplace Health and Safety (WHS) Act.

The MUA asserts that the COP should make reference to and clarify this situation of concurrent jurisdiction with a short sentence or two and an example.

The Commonwealth has not covered the field in stevedoring, so the two sets of regulation apply side by side. Commonwealth law generally prevails over state law to the extent of any inconsistency, especially where the Commonwealth has ‘covered the field’ in a certain area. Stevedoring is not such a situation. The Commonwealth is only attempting to regulate certain limited aspects of stevedoring through Marine Orders, for example, the specifics of lifting equipment and their use. All other general aspects of stevedoring - such as the systems of work of stevedoring workers while on the ship - are regulated by the particular state or territory. The two sets of laws apply simultaneously, and it is possible for persons conducting a business or undertaking to comply with both.

There is no question about this position. It is well established, and is reflected in the Memoranda of Understanding struck between AMSA and state regulators in each jurisdiction. Therefore, Safe Work Australia should reject any attempts by vested interests to muddy the waters and argue that the jurisdiction issues are somehow a reason to delay or block the code.

Therefore, the COP should provide a sentence or two to make it clear that the code applies to stevedoring workers both on the wharf and on board ships when in port, with some examples to emphasise the point.

The classic example is that of the stevedoring worker operating a ship’s crane. The crane and its lifting equipment are the concern of Marine Order 32 and AMSA, while the stevedoring worker and their systems of work fall under the relevant state WHS laws. It would be a simple matter for the COP to quote an example along these lines.

In the same way, the COP should also make it clear that other codes of practice apply to stevedoring work on board ships, for example, the Consultation Code of Practice. There is no reason to think that a worker is not entitled to consultation just because they are faced by a safety issue on the ship, rather than on the wharf. Clearly, the consultation code will apply equally on board the ship as on the wharf.

Likewise, the Crane Code of Practice must not be excluded from applying on board ships. The Crane Code deals with many systems of work matters that are not addressed in Marine Order 32. Marine Order 32 only deals with certain limited technical aspects of lifting equipment. All other provisions in the Crane Code will continue to apply. There is no constitutional basis for excluding the Crane Code from applying on board ships when in port, and it would be inappropriate for the Crane Code to be excluded.

Further to these preliminary points the MUA also makes the following three substantive arguments in relation to the draft Code of Practice:

  1. 1.    Hatchman: a requirement under marine orders

Hatchman and cargo space lookouts are long-standing safety measures that are vital to safety on the waterfront. The need for both of these positions is enshrined in Marine Orders 32. The hatchman is the marine equivalent of a dogman - a position that is beyond question in the construction industry and crane operations throughout Australia in various industries.

A hatchman is the eyes and ears of the crane driver, guiding the crane driver in the movement of cargo, providing a warning when danger arises, and helping to ensure that work occurs safely and efficiently. The hatchman watches over not only the crane but also those coming into contact with the crane operation both in the hold of the ship and on the wharf.

When the crane is not in operation and there is continued work in the hold, a cargo space lookout provides a watch over the hatch. It is unacceptable to have hold operations in place, often involving bulldozers, forklifts and unstable cargos, without a cargo space lookout.  When cargo collapses inside the hold of a ship, a cargo space lookout on deck provides workers in the hold with a few seconds of warning that often makes the critical difference between a hazard event and a fatality.

Hatchman and cargo space lookouts have saved lives time and again. Safe Work Australia have received ample evidence of this, including numerous detailed eyewitness accounts, as part of almost 700 individual submissions made when the existing guidance material was reviewed last year. The value of hatchman and cargo space lookouts in promoting safety is beyond doubt.

It is also unacceptable for the COP to provide lower safety standards than is prescribed in Marine Order 32.

It is very important to note that the provisions concerning the hatchman and cargo space lookout are set out in a number of sections of Marine Order 32. The relevant sections are:

Schedule 2 -             15.1 (a)

15.1 (b)

Schedule 5 -             5.1 (a)

                        5.2 (a)

                        5.2 (b)

Schedule 6 -             5.1 (a)

5.2 (a)

5.2 (b)

5.2 note

5.3 (a)

5.3 (c)

Schedule 7 -             3.1 (a) (ii)

No single section of Marine Order 32 can be looked at in isolation. Together, these provisions make up the totality of the position.

Safe Work Australia developed a form of words that encompasses the many aspects of the hatchman and cargo space lookout as set out in each of the provisions listed above. The MUA would have liked to have seen more detail, but the COP currently captures the most important points.

Some lobby groups, however, are attempting to argue that the hatchman provision of the COP should be identical to the wording of section 15.1 of Schedule 2 of Marine Order 32. This overlooks important aspects that are set out in the other sections of Marine Order 32. Therefore, adopting only the language of section 15.1 would be inconsistent with Marine Order 32 by omission. The COP cannot be inconsistent with another Commonwealth regulation. It should not alter the meaning of Marine Order 32 by selectively choosing one section while omitting others. It must faithfully reflect the intention of the Marine Order as a whole.

On this basis, the MUA supports the existing wording of the COP that Safe Work Australia has negotiated with each of the parties.

Alternatively, the COP should match the wording in all the relevant provisions of Marine Order 32 as outlined above.

  1. 2.    Guidance about training

Better skills and training are an important way to improve safety on the waterfront.

The provisions concerning training are more thorough in the COP than in some other codes, but, given the extent of the safety crisis in stevedoring, MUA feels they are warranted.

The MUA argued strongly for competency outcomes on the waterfront consistent with the standards provided in the Units of Competency in the Transport and Logistics Industry Training Package, and the various VET Qualifications and Skill Sets derived from those Units of Competency that are developed under the auspices of the Transport and Logistics Industry Skills Council (T&LISC).  The MUA’s call for reference to the Stevedoring VET qualifications was not agreed by industry and never made it into the document.

The arguments from industry and business lobbyists that the training provisions in the COP are ‘too prescriptive’ are incorrect. There are no provisions in the training section that are mandatory; they are merely worded as suggestions or optional steps.

In addition, there is strong support within the maritime community for detailed training guidance. Of the approximately 700 submissions made during the last comment phase, an overwhelming majority argued for better training.

In this context, MUA is of the view that the training provisions in the COP are appropriate. They should remain within the code as an illustration of how a Person Conducting a Business or Undertaking (PCBU) might satisfy s19(3)(f) of the model WHS Act, which requires PCBUs to provide any information, training or instruction that might be necessary to protect workers from risks to their health and safety arising from their work.

  1. 3.    Mooring provisions

Mooring activities are a dangerous activity in their own right.

Mooring is an activity performed by many stevedoring workers in Australia, especially in ports outside of capital cities.

The MUA submits that the mooring provisions must not be removed from the code unless an alternate process is established to develop equivalent material covering mooring.

Conclusion

The high rate of fatalities among stevedore workers requires a strong response to improve the situation. Although the MUA would prefer regulation, we are prepared to accept a code of practice in light of the unwillingness at this stage for any of the regulators, government departments and employers to accept the need for regulation. We cannot accept 'guidance material' as this is proven to be ineffective.

As this submission has clearly articulated, the MUA seeks the addition of text to the COP to clarify:

  1. the concurrent jurisdiction on the waterfront;
  2. the application of the COP to stevedore workers while on board ships; and
  3. the concurrent application of other SWA and state codes of practice to the waterfront.

The MUA supports all other aspects of the current wording of the COP, particuarly those that address the hatchman, the cargo space lookout, training, and mooring.


[1] Peter Ross, Appleton Dock, Vic, January 2007; Bob Cumberlidge, Westernport, Victoria, March 2007; Brad Gray, Brisbane, Queensland, February 2010; Nick Fanos, Port Botany, Sydney, March 2010; Steve Piper, Appleton Dock, Melbourne, July 2010; Greg Fitzgibbon, Newcastle, September 2012

[2] The death rate of stevedore workers was calculated based on the following information: 6 deaths at work in 6 years (2007-2012 inclusive – see list in footnote above). Average of 1 workplace death per year. Average size of stevedoring workforce in this period is 6,981 workers (average number of MUA members in stevedore industry 2007-2012).  All deaths listed above were of MUA members). Calculation: (1 death / 6,981 workers) x 100,000 = 14.3 deaths per 100,000 workers per year.

[3] Safe Work Australia, 2012, Notified Fatality Statistical Report 2010-11, p.7.

[4] Safe Work Australia, 2012, Notified Fatality Statistical Report 2010-11, p.7.

[5] The death rate of permanent members of the Australian Defence Force was calculated based on the following information: 38 ADF deaths 2007-2012, all in Afghanistan.  Average of 6.3 deaths per year. The ADF has a permanent force of 58,000 (Department of Defence Annual Report 2011-12, p.20). Calculation: (6.3 deaths / 58,000 permanent members of the ADF) x 100,000 = 10.9 deaths per 100,000 permanent ADF members per year.

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Appendix 1