special commission of inquiry into the ruby princess … · the international transport workers’...
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SPECIAL COMMISSION OF INQUIRY INTO THE RUBY PRINCESS
SUBMISSIONS ON BEHALF OF
INTERNATIONAL TRANSPORT WORKERS FEDERATION AND AFFILIATE UNIONS
Introduction and background
1. The International Transport Workers’ Federation (ITF) and its affiliate unions in
Australia, the Maritime Union of Australia (MUA), the Australian Institute of Marine
Powered Engineers (AIMPE) and the Australian Maritime Officers Union (AMOU)
make these submissions on behalf of the workers employed in the maritime industry
which, in relation to the Ruby Princess, include crew on board the ship, shore based
workers on the wharf and Port Authority employees including the pilot.
2. The ITF is an international trade union federation of transport workers’ unions. Its
members comprise 670 unions representing over 18 million transport workers from
147 countries.
3. The ITF is party to a Special Agreement with Princess Cruise Lines Limited under which
the ITF has industrial representation rights with respect to crew on the Ruby Princess
who undertook work in cleaning, food and hospitality, entertainment, ships
husbandry (maintenance), navigation and engineering.
4. On the ground in Australia, the MUA represents maritime workers who worked in port
authorities in boat services, towage, and wharf activities, including but not limited to,
the operation of the gangplanks or passageways that were used for the
disembarkation of the passengers from the Ruby Princess, as well as the handling of
luggage, food containers, garbage and other cargo from the vessel. The MUA also
represents the cutter crews for the pilot which boarded the Ruby Princess as it came
into and exited Sydney Harbour.
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5. The AMOU represents ships officers and pilots (including the pilot which boarded the
Ruby Princess as it came into and exited Sydney Harbour) and other technical and
administrative staff in the Port and Marine Authorities, as well as, in this case wharf
supervisors and deck officers who work offshore.
6. In these submissions, the ITF and its Affiliate Unions will be referred to collectively as
the Unions.
7. The Unions will not address all of the issues identified as relevant to the Terms of
Reference of the Special Inquiry by the Special Commissioner. Instead the Unions will
direct their submissions to those parts of the inquiry relevant to the interests of the
Unions and in particular, the lack of consideration given to the health and safety of
crew and port-side workers by government officials involved in the disembarking of
the Ruby Princess on 19 March 2020 and its immediate aftermath.
NSW Port Authority - pilotage
8. Pilotage is compulsory in every pilotage port.1 A marine pilot may defer pilotage only
for reasons related to ‘marine safety’.2
9. The Port Authority of NSW (Port Authority) has a Port Safety Operating Licence issued
by the Transport for NSW on behalf of the Minister for Roads, Maritime and Freight
under the Ports and Maritime Administration Act 1995 (NSW) (PMA Act). Pursuant to
this licence, the Port Authority provides pilotage services.
10. The objectives and functions of the Port Authority are set out in ss. 9 and 10 of the
PMA Act. They do not expressly refer to the health and safety of crew on board a
vessel, of its pilots or the health of port side workers or the community. However,
pursuant to s. 9(c) of the PM Act, one of the objects is to ‘ensure that its port safety
functions are carried out properly’. Pursuant to s. 10(2)(b) of the PMA Act, one of the
functions of the Port Authority is to exercise the port safety functions for which it is
licensed in accordance with its operating licence.
1 Marine Safety Act 1998 (NSW), s 74(1) and (2).2 Marine Safety Act 1998 (NSW), s 77.
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11. Further, pursuant to section 24 of the PMA Act, the Minister for Transport and Roads
has general responsibility for marine safety, including the “safe operation of
recreational and commercial vessels”.
12. The Unions consider that these functions with respect to ‘safety’ may include
considerations such as whether the crew are physically and mentally well enough to
safely navigate the ship to a wharf, and whether there are any safety implications for
crew (e.g. from embarking and/or carrying ill passengers) or for landside workers (if
disembarking ill passengers).
13. In any event, the Port Authority is a 'person conducting a business or undertaking’
(PCBU) for the purposes of complying with its duty of care to its workers under the
Work Health and Safety Act 2011 (WHS Act) and Work Health and Safety Regulation
2017 (WHS Regulation).
14. The Port Authority is responsible for managing navigation, security and operational
safety needs of commercial shipping in Sydney Harbour, Port Botany, Newcastle
Harbour, Port Kembla, Eden and Yamba.
15. The Minister appoints Harbour Masters pursuant to s 85 of the Marine Safety Act 1998
(NSW) (MS Act). Pursuant to s 88 of the MSA Act, the Harbour Master of any port may
direct and control various items including:
(a) the time and manner in which any vessel may enter or leave the port; and
….
(g) the period of advance notification required for a shipping berth.
16. Pursuant to s 89 of the MS Act, the Harbour Master may give directions:
(a) prohibiting the entry into, or movement out of, the port or any part of the
port;
(b) requiring the removal from the port or any part of the port, of any vessel
that the harbour master has reasonable cause to believe inter alia is in
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imminent danger of causing serious damage to the marine environment or
property of the port.
17. The Vessel Traffic Service (VTS) is a division of the Port Authority approved by the
Australian Maritime Safety Authority (AMSA) to provide vessel transfer services
safely. Pursuant to s 33 and 34 of Marine Order 64, it is a criminal offence for a master
of a vessel not to provide VTS with information or reports requested.
18. The Port Authority is responsible for determining whether a pilot will be sent to a
vessel to perform pilotage.
19. In that legislative framework, the decision-making of the Port Authority as to the
provision of pilotage does not incorporate any requirement to inquire into or
determine whether the New South Wales (or Australian) community must be
protected from any biosecurity risks onboard a vessel that is piloted.3
20. As at 19 March 2020, when the Ruby Princess approached Sydney Harbour, the health
and safety concerns of the Port Authority were instead limited to those of its own
employees, predominantly the pilots performing pilotage but also the port officers. In
particular, whether it was safe for those employees to interact with passengers and
crew on board the ship. Particular attention was directed to the safety of the pilot as
he would be in close contact with the crew on the Bridge, including the Captain, Staff
Captain, Navigator, Desk Officer, Helmsman, Lookout (able seaman) and a security
guard.4 Each of those officers and crew members themselves would have had
numerous interactions with other crew not on the Bridge and with passengers.
3 Exhibit 22, Statement of Emma Fensom, Port Authority, dated 5 May 2020, [17]; Statement of SarahMarshall, Port Authority 5 May 2020, Exhibit SM1, [24].4 Exhibit 26, Statement of Sam Chell, dated 22 April 2020, [12].
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Failure to protect pilot that piloted Ruby Princess on 8 March 2020
21. It is beyond doubt that on 8 March 2020, the ‘Ruby Princess Bridge’ sent an email to
the Port Authority declaring that there were ‘NO’ crew members onboard showing
signs of coronavirus and there were no ill passengers or crew on board.5
22. However, the information provided through the Maritime Arrivals Reporting System
(MARS) was that there were 170 ill persons on board. 6
23. Not only was that inconsistent with the information provided to the Port Authority, it
was highly inaccurate. When the Ruby Princess arrived in Port Jackson on the morning
of 8 March 2020, NSW Health boarded the vessel and 360 people presented for
assessment on the basis that they were exhibiting symptoms of illness. Nine (9) people
were tested for coronavirus which were ultimately found to be negative.7
24. Upon receipt of the MARS report, NSW Health had not alerted the Port Authority to
the information it had as to the number of persons presenting with symptoms and as
such the Port Authority had no information on which to assess the risk in respect of
the pilot boarding the vessel.
25. As a result, the pilot who piloted the Ruby Princess on 8 March 2020, James Dargaville,
was not warned of any risk and was not instructed to wear PPE. He wore plastic gloves
and a mask when boarding the ship and walking to the Bridge (which required him to
walk past the crew and passenger accommodation quarters) but took the PPE off
when on the Bridge with the Captain, Staff Captain, Navigator, Co-navigator and two
seamen.8 Mr Dargaville put on the gloves and mask for the return journey when
disembarking the ship.
5 Annexure 10 to Exhibit 22, Statement of Emma Fensom, dated 5 May 2020. See also Statement of SarahMarshall, Port Authority 5 May 2020, Annexure SM1, [13].6 Also Exhibit 23, Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [22].7 Exhibit 22, Statement of Emma Fensom, dated 5 May 2020l, [21]. Exhibit 23, Statement of Sarah Marshall,Port Authority 5 May 2020, Exhibit SM1, [14].8 Exhibit 95, Statement of James Dargaville, Port Authority, dated 16 April 2020, [9]-[10].
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26. The lacuna in the system meant that relevant information about the presence of
symptomatic passengers resulted in the Port Authority not having the information it
needed in order to discharge its WHS and duty of care obligations to Mr Dargaville.
27. The Port Authority conducted an investigation into why the ‘Ruby Princess’ Bridge had
provided incorrect information. The excuse given was that there had been a
‘misinterpretation of the question being related only to COVID-19’9. That was not a
viable explanation in circumstances where the onboard doctor could not have known
whether any passengers had contracted COVID-19 because there were no testing
facilities onboard. In any event, having been told that the question was open to such
‘misinterpretation’ the Port Authority took no steps to change the questions it asked
of cruise ships. (This is only partly explained by Doug Hanshaw’s evidence that he did
not forward the email from Mr Mifsud onto Ms Fensom or Ms Marshall, who had
responsibility for developing the COVID-19 protocols for the Port Authority, until 18
March 2020.10 )
28. Further, the Port Authority did not seek a Ministerial Direction under section 87(3) of
the Marine Safety Act 1998 (NSW) to strengthen the VTS reporting requirements from
cruise ships (or all ships), and to ensure there was sharing of MARS advice from the
Department of Agriculture and of health assessments undertaken by NSW Health. It
also failed to consult with SafeWork NSW about what steps it could implement to
protect its pilots.
29. As such, the Port Authority did not take appropriate steps to ensure it had sufficient
information to warn its staff of any risks of COVID-19 on board a cruise ship in the
future.
9 Exhibit 45, Statement of Doug Hanshaw, Port Authority, dated 20 May 2020, [28].10 Exhibit 45, Statement of Doug Hansahw, Port Authority, dated 20 May 2020, [29].
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Precautions to protect crew members throughout voyage 8 March - 19 March
Public Health Information to crew working on cruises departing from New South Wales
30. Professor Ferson is the Director of the South East Sydney Local Health District
(SESLHD). It conducts the Cruise Ship Surveillance Program. Professor Ferson gave
evidence that this program provided public health information to current passengers,
and if appropriate, to incoming passengers when outbreaks occur on the ships.11 He
was not aware of what steps, if any, this program had taken to provide public health
information to crew members who worked on cruise ships entering or departing New
South Wales waters.12
31. The Cruise Ship Surveillance Program has established links with cruise ship companies,
shipping agents and government agency personnel but not the Unions.
32. Professor Ferson stated there was no reason for this and it would be of benefit to get
the Unions’ perspective on WHS concerns which overlapped with public health
concerns, although he was not sure what the mechanism would be.13
33. Professor Ferson also gave evidence that the SESLHD sent weekly emails to cruise ship
doctors, and cruise company public health personnel, containing updates on NSW
related public health information. However, there was no provision of any of that
information to the Unions so that they could inform and alert crew to any issues of
concern.14
34. The failure in the Program was that it presupposed that by providing health
information to the cruise ship owners, that information would be passed on to the
workers – when, in fact, there was no evidence that this occurred on the Ruby Princess
or generally.
11 Exhibit 38, Statement of Mark Ferson, dated 29 May 2020, [13].12 Transcript 15 June 2020, p 1289, l 1-11.13 Transcript 15 June 2020, p 1298, l 36-46 and p 1299.14 Exhibit 38, Statement of Mark Ferson, dated 29 May 2020, [14].
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Were adequate WHS precautions, including PPE and training on social distancing put
in place for crew on board the ship?
35. The evidence of Peter Little, Senior Vice President Guest Experiences, P&O Cruises was
that the Ruby Princess was owned and operated by Princess Cruise Lines under a time
charter to Carnival Plc who conducted the revenue activities onboard the vessel and
that Princess Cruise Lines supplied the crew.15 The Ruby Princess is registered in
Bermuda and Princess Cruise Lines Ltd is a company based in California.
36. The WHS Act does not have extraterritorial operation. As such, when the Ruby
Princess was outside the territorial waters of New South Wales, the obligations under
that legislation did not apply. However, obligations to ensure the work, health and
safety of the crew on board the vessel applied by virtue of one of the following:
36.1 The Maritime Labour Convention 2006 given effect to by the Navigation Act
2012 (Cth) and associated Marine Orders, in particular Article IV(1) which
provides that ‘every seafarer has the right to a safe and secure workplace that
complies with safety standards’ and Article IV(4), which provides that ‘every
seafarer has a right to health protection, medical care, welfare measures and
other forms of social protection’;
36.2 Merchant Shipping (Health and Safety At Work) Regulations 2004 (Bermuda);
36.3 Merchant Shipping (Seafarers’ Employment Regulations 2013 (Bermuda);
36.4 Possibly the Occupational Safety and Health Act of 1973 (California); and/or
36.5 Seafarers Employment Agreements signed individually by each seafarer
member (which incorporate seafarer collective agreements, in this case being
collective bargaining agreements between Princess Cruise Lines Ltd and the
Italian Federation of Transport Workers and Italian Transport Federation).16
37. The evidence from the Hotel Manager, Mr Verwaal that, whilst at sea, Carnival was
operating at ‘elevated health levels’, meaning intensified cleaning practices,17
15 Transcript 26 June 2020, p 1960 – 1961.16 Those Collective Agreement require Princess Cruise Lines Limited, the employer, to provide safe workplaces,as well as other safety measures.17 See also: Exhibit 63, Statement of Percy Anderson, dated 24 April 2020, [11]; Exhibit 74, Statement ofAndrew Saulys, dated 14 May 2020,[12], [14]; Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020,
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practising social distancing, no more self-service buffets18 and different operating
manners for the restaurants.19 Further, he stated that passengers were advised to use
their own toilets and sanitise their hands.20
38. However, there were no changes to entertainment such as live shows, movie theatres
and night clubs on board the ship.21
39. The evidence from a selection of the passengers onboard the Ruby Princess between
8 and 19 March 2020 was that:
39.1 Passengers were required to fill in a health clearance form prior to boarding,
asking if they had travelled from a high risk country, been in contact with a
confirmed or suspected case of COVID-19 and if they had any temperature or
flu like symptoms but there was no temperature checks;22
39.2 There were areas on the ship that were particularly crowded, such as:
39.2.1 theatres where there was evening entertainment, with two
screenings per night;23
39.2.2 the atrium and other bars and restaurants onboard;24
[31]; Exhibit 86, Statement of Paul Reid, dated 15 May 2020, [21]; Exhibit 90, Statement of Kristy AnnMcMahon, dated 7 May 2020, [17].18 Although passengers, for example, Ms Kristy Ann McMahon give evidence that the buffet was not self-service only for the last 4 or so days of the cruise and from this time passengers could not get beverage re-fillseither: Exhibit 90, Statement of Kristy McMahon, dated 7 May 2020 [17].19 Mr Charles Verwaal, Transcript 11 May 2020, p 122, l 13-28 and p 123, l 33-36. Although the evidence ofpassengers on this is mixed and it appears the intensified cleaning may have only occurred after the vessel wasturned back to Sydney. See for example: Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [16]and Exhibit 76, Statement of Josephine Roope, dated 6 May 2020, [36] cf Exhibit 83, Statement of SharonSchofield, dated 12 May 2020, [11].20 Exhibit 64, Statement of Graeme Lake, dated 12 May 2020, [22], [27]; Exhibit 67, Statement of WendyWilliams dated 11 May 2020, [7]; Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [11], [14];Exhibit 76, Statement of Ms Josephine Roope, dated 6 May 2020, [30]; Exhibit 74, Statement of Andrew Saulys,dated 14 May 2020, [15]; Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [19], [24];Statement of Lynette Jones, dated 21 April 2020, [15]; Exhibit 80, Statement of Lynette Jones, dated 21 April2020, [21]; Exhibit 83, Statement of Sharon Schofield, dated 12 May 2020, [9]; Exhibit 86, Statement of PaulReid, dated 15 May 2020, [19].21 Mr Charles Verwaal, Transcript 11 May 2020, p 128, l 38-42 and p 129.22 Exhibit 89, Statement of Laraine Fenton, dated 5 May 2020, [6]; Exhibit 90, Statement of Kristy AnnMcMahon dated 7 May 2020, [8].23 Exhibit 60, Statement of Mr Anthony Londero, dated 16 April 2020, [19]; Exhibit 65, Statement of DavidWalters, dated 25 April 2020, [19].24 Exhibit 80, Statement of Lynette Jones, dated 21 April 2020, [12]; Mr Wright: Transcript 22 June 2020, p1706. Mr and Mrs Saulys: Transcript 22 June 2020, p 1740.
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39.2.3 the places where safety talks were given with approximately 500
people ‘crowded in like sardines’;25 and
39.2.4 the Princess Theatre, where a couple of hundred passengers waited
until tours were ready;26
39.2.5 a huge St Patrick’s day party on 17 March 2020 in one of the lounges
with approximately 400 passengers;27 and
39.2.6 a farewell party on the last night where staff were dancing shoulder
to shoulder with passengers;28
39.3 There were no instructions to passengers to social distance at the safety drill
held before departing Sydney or otherwise,29 although once the vessel was on
its way home Ms Kavanagh noticed crew were keeping their distance from
passengers;30
39.4 Passengers observed crew wearing PPE only occasionally, for example:
39.4.1 other than when staff were serving food, Mr Londero did not see staff
wearing any PPE31
39.4.2 Mr Anderson reported that crew members serving food were never
wearing masks;32
39.4.3 Ms Roope observed that staff cleaning the plates and removing the
reusable material napkins at the Horizons restaurant were not using
gloves,33
39.4.4 some staff were wearing masks in the medical centre on 18 March
2020;34
25 Exhibit 64, Statement of Graeme Lake, dated 12 May 2020, [21].26 Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [14].27 Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [22] and Transcript 22 June 2020, p 1696, l 4-20.28 Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [20] and Transcript 22 June 2020, p 1797.29 Exhibit 89, Statement of Laraine Fenton, dated 5 May 2020, [14]. Exhibit 60, Statement of Anthony Londero,dated 16 April 2020, [23].30 Exhibit 60, Statement of Mr Anthony Londero, dated 16 April 2020, [21]. Exhibit 71, Statement of JillWhittemore, dated 28 April 2020, [22]; Exhibit 84, Statement of Ann Kavanagh, dated 28 April 2020, [22].31 Exhibit 60, Statement of Mr Londero, dated 16 April 2020,[23].32 Transcript 19 June 2020, p 1623, l 12-15.33 Exhibit 76, Statement of Ms Josephine Roope, dated 16 April 2020, [30].34 Exhibit 76, Statement of Ms Josephine Roope dated 16 April 2020, [20].
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39.4.5 Ms DeLamotte observed a female person wearing full hazmat gear on
the deck of the Ruby Princess when boarding on 8 March 2020 but
other crew were dressed in a uniform with gloves on without a hazmat
suit;35
39.4.6 Mr Londero did not notice any Ruby Princess staff overseeing the
security screening process on 12, 13, 14 or 15 March 200 wearing PPE
such as masks or gloves;36
39.4.7 the medical centre receptionist and doctor were wearing face masks
on 16 March 2020;37
39.5 Crew were not necessarily aware if passengers decided to self-quarantine if
they had respiratory symptoms and/or a fever;38
39.6 It was not announced to passengers that there were suspected cases of COVID-
19 onboard at any time or that there were passengers self-isolating39and some
passengers with a diagnosis of influenza were not told to self-isolate;40
39.7 Passengers suspected of having COVID-19 were not in any kind of isolation in
the medical centre and other passengers could wander in and out to see
them.41
40. There is no evidence about what directions (if any) were given to crew to protect them
from possible infection of COVID-19. Mr Mifsud was specifically asked what protocols
were in place for crew but he did not know.42
41. Given the sporadic and inconsistent manner in which PPE was being worn, the Special
Commission could not be satisfied on the evidence that there was any sufficient
35 Exhibit 79, Statement of Ms Lynda De Lamotte, dated 20 May 2020, [6].36 Exhibit 60, Statement of Mr Anthony Londero, dated 16 April 2020, [14], [16], [17], [19].37Exhibit 86, Statement of Paul Reid, dated 15 May 2020, [8].38 Exhibit 67, Statement of Wendy Williams, dated 11 May 2020, [17].39 Exhibit 76, Statement of Josephine Roope, dated 6 May 2020, [35]; Exhibit 83, Statement of SharonSchofield, dated 12 May 2020, [16]; Exhibit 84, Statement of Ann Kavanagh, dated 28 April 2020, [21]; Exhibit90, Statement of Kristy Ann McMahon, dated 7 May 2020, [15], [20] and [30].40 Exhibit 80, Statement of Lynette Jones, dated 21 April 2020, [19] and Transcript 23 June 2020, p 1834;Exhibit 86, Statement of Paul Reid, dated 15 May 2020, [12]. C.f Mr Walters: Transcript 19 June 2020, p 1658, l42-45.41 Exhibit 76, Statement of Josephine Roope, dated 6 May 2020, [26].42 Transcript 11 May 2020, p 887-894.
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directions to crew about the use of PPE. A similar conclusion would be reached in
relation to social distancing and hygiene.
42. Mr Little’s statement annexes an internal Incident Command Sitrep dated 16 March
2020 which records that ‘crew need to self-isolate on ship for 14 days. Do not need to
isolate in individual cabins. The ship is compared to someone’s home’.43 This was
described as a ramshackle way to prevent the risk of infection of COVID-19 among the
crew.44 The evidence of Dr Tarling, Chief Medical Officer for Carnival, is that this advice
did not come from him or his team.45
43. Accordingly, it appears that throughout the voyage, crew remained in their cabins,
some of which contained four bunk beds to a room, and mixed freely amongst one
another and with the passengers. The crew did so, apparently with no idea that some
passengers on board were exhibiting COVID-19 symptoms. As such, they were
deprived of relevant information to make informed decisions about their health and
safety. This was an unacceptable situation, particularly for those crew who had any
co-morbidities which may have heightened the risk of a poorer outcome in the event
that they contracted the virus.
44. The Unions contend that there should have been a clear protocol put in place for crew
which:
44.1 directed crew to observe social distancing (both with other crew and with
passengers);
44.2 directed crew to wear appropriate PPE when handling food, drinks or when
the crew had to be in closer proximity with others;
44.3 directed higher grade PPE for cleaning duties especially of bathrooms, toilets
and cabins;
44.4 directed crew to use hygiene protocols of regular handwashing (20 seconds in
length) and regular use of had sanitiser.
43 P 130 to the Exhibits to Mr Little’s statement dated 26 June 2020.44 Transcript 26 June 2020, p 2039-2040.45 Statement of Dr Tarling dated 29 June 2020, [75].
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45. Further, the Unions contend that all crew had a right to be informed that there were
suspect COVID-19 cases on board so that the crew could take steps to protect their
own safety.
Port Authority’s grant of pilotage on 18/19 March 2020
46. From 9 March 2020, NSW Health agreed to alert the Port Authority if there was a
vessel entering NSW waters that was classified at medium or high risk.46 Putting aside
the inherent flaws in the classification system which led to this grading of ‘high’,
‘medium’ or ‘low, this decision was flawed as a ‘low’ risk ship could still have carried a
risk of contagion to pilots.
47. The Port Authority does not have access to the MARS through the Department of
Agriculture47 and was thus reliant on NSW Health for information.
48. Despite attempts by the Port Authority to co-ordinate with the Australian Border
Force, the contact there, Alice Stanley, did not respond.48
49. On 13 March 2020, the Port Authority’s Operations Working Guidelines for COVID-19
was updated to include the ‘Response Scenario Matrix’. The Guidelines also
contemplated that staff would have to board a vessel with a suspected or confirmed
case of COVID-19 and that this would be ‘guided by the Scenario Matrix and the PPE
Guidelines’.49
50. The Scenario Matrix was deficient in a number of respects, namely:
50.1 It did not ‘marry up’ to the biosecurity questions asked of vessels. For example,
scenario 6 is triggered if ‘the ship declares they have crew and/or passengers
with COVID 19 symptoms before vessel is piloted and after the 14 day period’;
46Exhibit 23, Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [23]; Exhibit 22, Statementof Emma Fensom, Port Authority, dated 5 May 2020, [33].47Exhibit 23, Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [25];Exhibit 22, Statementof Emma Fensom, Port Authority, dated 5 May 2020, [34].48 Exhibit 23, Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [21].49 Exhibit 22, Statement of Emma Fensom, Port Authority, dated 5 May 2020, [31].
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50.2 The biosecurity questions ask if any passengers or crew are ‘ill’ (which could
include having a sprained wrist) but inconsistently asked if any crew are
showing symptoms of COVID-19;
50.3 The trigger for determining whether a vessel fell within a particular scenario
was the vessel’s answers to the biosecurity questions despite the Port
Authority’s then recent experience on 8 March 2020 which illustrated that
cruise ships, in that case the Ruby Princess, can provide false information and
in circumstances where the MUA had warned the Port Authority about relying
on ships self-reports of ill health on 29 January 2020. 50
50.4 The ultimate decision rested with the Port Authority on the basis of ‘feedback’
from NSW Health and the Department of Agriculture, Water and the
Environment but in reality, the Port Authority was reliant on these authorities
to make risk assessments which were directed to biosecurity risks to the
community and not the risks posed to staff of the Port Authority, such as the
pilot;.
50.5 The Scenario Matrix had been drafted without consideration of the type of
‘feedback’ it was likely to receive from NSW Heath and the Department of
Agriculture, Water and the Environment and how to consider granting pilotage
on a case by case basis.
50.6 Despite Scenario 6 requiring ‘feedback’ from NSW Health, the only contact
provided was an 1-800 number to ‘ensure awareness’. It did not provide a 24
hour contact to the relevant contact within the NSW Health.
51. Professor Ferson, the Director of the Public Health Unit of the SESLHD, confirmed he
did not know about the Port Authority Scenario Matrix when providing his advice to
the Port Authority.51
52. Further, it is apparent that the Scenario Matrix was of little or no assistance on 18
March 2020 when Port Authority staff were determining what steps to take to
adequately protect their staff from the risk of exposure to COVID-19. Mr Stephen
50 Email from Paul Garret, MUA to Cameron Butchart, Port Authority (Copy to Phillip Holliday), dated 29January 2020 (Annexure A to these submissions). See also the MUA’s submission to the Select Committee onCOVID-19, dated 15 June 2020 (Annexure B to these submissions).51 Transcript of 15 June 2020, p 1301, l 17-20.
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Howieson, the Operator at the Vessel Traffic Services, had to ‘look through his emails
to find it’ when Mr Butchart asked for Mr Franz Odermatt’s telephone number.52 This
begs the question of whether Mr Howieson and Mr Butchart were adequately trained
in how to implement the Scenario Matrix. There is also considerable doubt as to
whether Mr Butchart referred to the Scenario Matrix at all that evening despite his
evidence to the contrary.53 It is noted that Mr Howieson received the Scenario Matrix
just 3 days prior to his shift starting on 17 March 2020 and he received no training on
how to use it.54
53. While Mr Butchart telephoned Franz Odermatt, Department of Agriculture, Water and
Environment for ‘feedback’ as the Scenario Matrix dictates, he was unable to reach
him55 and did not wait to hear back from him before making a decision to re-book the
Ruby Princess for pilotage. Further, he made the decision to re-book the vessel
without waiting for feedback from Emma Fensom in the Crisis Management Team.56
54. Ms Fensom in her discussions with Mr Butchart relied on advice from NSW Health that
the Ruby Princess was ‘low risk’ and cleared it for pilotage and disembarking without
really understanding what that classification meant precisely in terms of risk to the
pilot. She also relied on advice from the Ship’s doctor and Senior Director Port
Operations (Asia Pacific) for Carnival, Mr Mifsud, that the ambulances that had been
called were not for COVID-19 related issues even though Mr Butchart had information
that there were 120 sick passengers on board the vessel and that samples were being
landed for testing.57
55. Mr Howieson from VTS spoke to the ship’s doctor, Dr. Von Watzdorf who informed
him that the passengers requiring an ambulance had a respiratory tract infection for
which there was no diagnosis and would need to be investigated once they got to
hospital. The fact that she did not say ‘they are suspect COVID-19 cases’ was
immaterial. They had symptoms consistent with COVID-19. Mr Howieson took no
52 Exhibit 25, Statement of Stephen Howieson, Port Authority, dated 30 April 2020, [38].53 Exhibit 24, Statement of Mr Butchart, Port Authority, dated 5 May 2020, Annexure A, [26].54 Exhibit 94, Second Statement of Stephen Howieson, Port Authority, dated 16 June 2020, [7].55 Exhibit 24, Statement of Mr Butchart, Port Authority, dated 5 May 2020, Annexure A, [25].56 Exhibit 25, Statement of Stephen Howieson, Port Authority, dated 30 April 2020, [78].57 Mr Butchart: Transcript 8 May 2020, p 652 – 662.
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steps to confirm whether or not the doctor considered that they were ‘suspect COVID-
19 cases’.58
56. Despite the information that was available to the Port Authority, it was not sufficiently
informed at all about:
56.1 the possibility of COVID-19 cases on board the vessel;
56.2 whether any symptomatic persons were passengers or crew, if crew, which
crew. This being an important consideration given that the contact to be made
by the pilot was with crew, not passengers.
57. Ms Fensom’s questioning of Mr Mifsud lacked any depth.59 Put simply, she failed to
ask questions that would provide meaningful information on which to make a decision
to grant pilotage. Similarly, Mr Howieson’s questioning of the ship’s doctor was
superficial, particularly in light of the fact that the information provided by the ship
was ambiguous and did not sufficiently alert the Port Authority to the risks on board.
58. It is open for the Special Commission to reach a conclusion on the nature of the
information provided by Mr Mifsud to Ms Fensom. Ms Fensom claims that Mr Mifsud
said “Health has not said the ambulances are for COVID. Health have not said that
there is COVID on board”.60 Mr Mifsud’s evidence is that he does not recall making
these statements.61 In any event, Ms Fensom ought never have accepted Mr Mifsud’s
statements without questioning how NSW Health could have known there was not
COVID-19 on board the vessel when there was no testing available on board.62
59. This exchange evidences an inherent conflict of interest at play between the ship’s
desire to obtain pilotage and therefore provide information that might downplay the
level of risk on board the vessel and the Port Authority’s interest in obtaining reliable
and accurate information so that it can best protect its staff.
58 Exhibit 70: Audio recording of conversation between Howieson and Dr Isle Von Watzdorf on 18 March 2020.59 Transcript 8 May 2020, p 749.60 Exhibit 22, Statement of Emma Fensom, Port Authority, dated 5 May 2020, [45].61 Transcript 11 May 2020, p 873 – 874.62 Transcript 8 May 2020, p 746.
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60. Further, there was a bizarre and misplaced element of distrust of the NSW
Ambulance63 (which turned out to have the most accurate information) and Home
Affairs personnel.64 This belies a lack of confidence in the system where the focus
should be on obtaining proper and reliable information which itself is dependent upon
having access to the correct decision-makers (and the correct contact details for
them). It also speaks to a lack of co-ordination and co-operation between these
authorities and clear lines of responsibility and functions.
61. Indeed, NSW Ambulance did not even have the telephone number for the Port
Authority and instead called the Marina Area Command.65 This resulted in Sergeant
Hollands and conducting enquiries with Border
Force and NSW Health.66
62. Despite, Mr Butchart being in receipt of information that Mr Dilonardo was from NSW
Ambulance and his information had been provided from a known shipping agent,
‘Bibi’, Mr Butchart failed to take heed of this information.
63. Further, told Mr Butchart to contact NSW Health but
Mr Butchart did not have contact details for NSW Health.67
64. also did not have the number of NSW Health. He was
told by the Duty Operations Inspector that the SEOC was business hours only and that
he could “Google” NSW Health’s contact details.68
65. Mr Dilonardo from NSW Ambulance gave an incorrect
number to the Commonwealth coronavirus hotline by mistake,69 which
passed on to Mr Butchart.70 When
called this number he was informed it was for advice and reporting only.71 As
63 Exhibit 24, Statement of Mr Butchart, Port Authority, dated 5 May 2020, Annexure A, [31].64 Exhibit 24, Statement of Mr Butchart, Port Authority, dated 5 May 2020, Annexure A, [44].65 Exhibit 39, Statement of Mr Travis Butler, Marine Area Command, dated 4 April 2020, [5].66 Exhibit 39, Statement of Mr Travis Butler, Marine Area Command, dated 4 April 2020, [7].67 Exhibit 40, Statement of dated 9 April 2020, [9].68 Exhibit 40, Statement of dated 9 April 2020, [10].69 Exhibit 41, Statement of dated 6 May 2020, [4]-[5].70 Exhibit 40, Statement of dated 9 April 2020, [11]-[12].71 Exhibit 40, Statement of dated 9 April 2020, [14].
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Sergeant Hollands observes in his statement, there was miscommunication between
agencies72 (which is quite an understatement) and that NSW Police had
(inappropriately) become a conduit for messages.73
66. Despite being in possession of information both from NSW Ambulance ‘that the 2
passengers have possibly got COVID-19 and that there are 120 people in quarantine
on board and samples were being landed for testing” Mr Butchart spent a considerable
amount of time working out whether the call was ‘bogus’ and elected to wait until
1:06am to email the pilot, Mr Sam Chell to warn him of this risk and advise him to
wear PPE.74
67. Shortly afterwards, Mr Butchart emailed [email protected] to ‘make sure
he knows about this’. Mr Howieson gave evidence that by that stage the pilot had
already boarded but he had spoken to him earlier about the contradictory reports75
The recording of his earlier phone conversation with Mr Chell does not include a
caution for him to wear PPE.76 Mr Chell gave evidence that he did not read Mr
Butchart’s email until after he finished his shift.77
68. Once the Port Authority was on notice that there was a possibility of COVID-19, it
needed to take immediate steps to warn the pilot and instruct him to wear PPE.
Instead of doing this immediately and as a priority, it was almost an after-thought,
after valuable time was spent interrogating persons from other government
departments and the vessel about the veracity of the information received. Further,
none of its inquiries were directed at ascertaining whether the Bridge crew had had
close contact with these passengers or any of the other ‘ill’ passengers or crew or what
PPE the Bridge crew had been directed to wear.
69. Despite the lack of any adequate information or direction by the Port Authority, Mr
Chell took it upon himself to wear PPE - mask and gloves78 but he had no knowledge
72 Exhibit 97, Statement of Sergeant Hollands, dated 12 April 2020, [11].73 Exhibit 97, Statement of Sergeant Hollands, dated 12 April 2020, [14].74 Exhibit 24, Statement of Cameron Butchart, dated 5 May 2020, [50] and Annexure E.75 Exhibit 25, Statement of Mr Howieson, dated 30 April 2020, [91].76 Exhibit 25, Statement of Mr Howieson, dated 30 April 2020, [64].77 Exhibit 26, Statement of Mr Sam Chell, dated 22 April 2020, [17].78 Exhibit 26, Statement of Sam Chell, dated 22 April 2020, [12].
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of the risks on board and should have been warned as it would have led him to have
taken further care to avoid touching surfaces or otherwise. Further, Mr Chell gave
evidence that on 19 March 2020, he removed his gloves when he reached the Bridge
and met staff including the Navigator, Deck Officer, Helmsman, Look-out, Ship’s
Commodore and deck officers.79 At that stage, there was no way of knowing how
much contact these crew members had had with infected passengers.
70. Mr Kelly, the marine pilot, was involved in the departure of the Ruby Princess on 19
March 2020 at approximately 4pm.80 He gave evidence that whilst he was aware there
had been some concerns regarding health of passengers and crew, he was of the
opinion that everything was ‘OK’ as they had let everyone off’.81 This demonstrates
that he too was not given any adequate information properly notifying him that swabs
had been sent to laboratories to be tested for COVID-19 and that there had been
suspect cases onboard the vessel.
71. Mr Kelly gave evidence that he did not physically touch any crew members and kept a
distance of 2 metres from them at all times but he removed his PPE when he reached
the Bridge.82 He then put his PPE back on when he left the Bridge and while he moved
through the crew alleyway. He then removed his PPE when he reached the Port
Authority vessel. He placed the PPE into a clothing bin and disinfected his hands with
sanitiser.83
72. Professor Ferson agreed that his advice to Ms Marshall to ‘not worry if the pilot was
wearing his PPE’ would have been different if he had known that the PPE was taken
off while the pilot was on the Bridge and interacting with crew members.84
73. Any response by the Port Authority on 18-19 March 2020 should have been guided by:
73.1 the inherent risks onboard the cruise ship for COVID-19 to be circulating given
the large number of persons onboard co-mingling;
79 Exhibit 26, Statement of Sam Chell, dated 22 April 2020, [12].80 Exhibit 46, Statement of Michael Kelly, dated 26 May 2020, [7].81 Exhibit 46, Statement of Michael Kelly, dated 26 May 2020, [9].82 Exhibit 46, Statement of Michael Kelly, dated 26 May 2020, [10].83 Exhibit 46, Statement of Michael Kelly, dated 26 May 2020, [17].84 Transcript of 15 June 2020, p 1301 – 1302.
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73.2 international passengers and crew were onboard
73.3 the voyage involved international travel; and
73.4 there was no possible way to know if a person had COVID-19 until after the
swabs had been tested (which the Port Authority was well aware of as it had
been consulted about a possible solution of collecting swabs prior to cruise
ships landing).85
74. Further, the fact that the shipping agents Bibi Tokovic and Valerie Burrows were not
contactable in the early hours of the morning appears to be a contravention of s 47(3)
of the Biosecurity Act 2015 (Cth). As such, the Port Authority who was required to
make the critical decision about pilotage in the early hours of 19 March 2020 was left
without the necessary information.
75. The information received by decision-makers was garbled and unreliable. Most of it
second-hand or third-hand hearsay. It involved a poor interpretation of medical
information which neither the messengers nor recipients fully comprehended. For
example, gave evidence that Mr Butchart told
him that the ‘CEO of Carnival Australia had told him that the five tests from New
Zealand were negative and the two people sick are as a result of a septic ear
infection’.86 This was inaccurate and not pertinent information. While it is correct that
the five tests that had been done in New Zealand had returned a negative result, there
will still swabs that remained to be tested and the two persons that needed an
ambulance did not have ear infections.
76. The CDNA National Guidelines for Public Health Units, 13 March 2020 on p 16 states
that:
‘if there’s a suspect or confirmed case onboard that requires transfer to a
hospital, the Commonwealth Biosecurity Officer will notify the Port Authority
to provide access for medical transport’.
77. If the Port Authority had received its information about a suspected case of COVID-19
onboard the ship from the Commonwealth Biosecurity Officer or an authorised
85 Exhibit 22, Statement of Emma Fensom, dated 5 May 2020, [9].86 Exhibit 40, Statement of dated 9 April 2020, [13].
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channel of communication, it would have avoided some of the confusion that resulted
on 18/19 March 2020.
NSW Health
Guidelines and communications to the Cruise Industry
78. The “19 February 2020 Draft Cruise Ship COVID-19 Assessment Procedure for Ports of
First Entry into Australia” (19 February Procedure) was developed to guide the NSW
Health Expert Panel in assessing the risk of COVID-19 on board vessels entering New
South Wales.
79. The 19 February Procedure is replete with examples where the only consideration was
passengers and there was no reference to crew. The evidence of doctors who
developed these guidelines and used them to make risk assessments of vessels for the
presence of COVID-19 onboard ships was that there was no reason why the crew had
been overlooked in those parts of the Procedure,87 they just were.
80. In addition, words such as ‘home quarantine’ and ‘self-isolation’ were used for both
passengers and crew without consideration for the specific financial, accommodation
and employment situation of crew.88
81. Furthermore, while it was pertinent for NSW Health to understand whether
passengers were informed to report to the medical centre if they had symptoms and
that this assessment be free of charge, there was no attention given to whether crew
(many of whom came from India and the Philippines) had been likewise informed, in
a manner that they understood, of the same requirement. For example, a general
announcement over the PA system addressed to both passengers and crew89 is an
insufficient method for communicating with workers who could have readily been
advised in face to face staff meetings by their supervisors. The evidence from the ARD
log shows many more crew reporting with symptoms after the vessel docked. One of
87 Dr Tobin: Transcript 10 June 2020, pp 1144- 1156; Professor Ferson: Transcript 15 June 2020, p 1288-1302;Dr Gupta: Transcript 16 June 2020, pp 1409-1415.88 Dr Tobin: Transcript 10 June 2020, pp 1144- 1156; Professor Ferson: Transcript 15 June 2020, p 1288-1302;Dr Gupta: Transcript 16 June 2020, pp 1409-1415.89 Statement of Dr Tarling, dated 29 June 2020, [70].
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the possible reasons for this is that they may not have been informed to report earlier
if they had symptoms.
82. The “22 February 2020 Enhanced COVID-19 Procedures for the Cruise Line Industry”
(Enhanced Procedures), a guidance document that was provided to cruise ship
operators, sometimes refers to ‘passengers and crew’ and sometimes just
‘passengers’ - for no apparent reason. For example, the procedures to identify and
manage cases of respiratory infection require passengers who may be infectious to
isolate but not crew members. Dr Tobin gave evidence that there was no reason why
crew ought not be included in that guidance and that it was a ‘mistake’ that crew were
not included.90
83. These discrepancies are not just typographical errors but indicate a lack of discrete
attention being paid to the specific situation of crew when developing guidelines
about the risk assessment and steps to take following a risk assessment, particularly
the steps taken to protect the crew during the disembarkation process and for
remaining crew once the passengers had disembarked on 19 March 2020.
Risk Assessment by NSW Health
84. The Chief Human Biosecurity Officer (CHBO) was a member of the NSW Health Expert
Panel who conducted the risk assessment of the Ruby Princess on 18 March 2020.
However, he did not consider himself acting in his capacity as the CHBO when he as
on the cruise ship risk assessment panel.91
85. There is no evidence of a written recommendation being made by the Expert Health
Panel to the CHBO or of the CHBO providing written advice to the Commonwealth
Biosecurity Officer from the Department of Agriculture, Water and Environment that
pratique should be granted. The members of the Expert Panel understood what
pratique meant and that their decision was involved in pratique but no one took
90 Transcript 10 June 2020, p 1148.91 Exhibit 28, Statement of Sean Tobin, dated 29 May 2020, [10].
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responsibility for advising the Department of Agriculture, Water and Environment of
the decision.92
86. The Risk Assessment conducted by the NSW Health Expert Panel of the Ruby Princess
on 18 March 2020 – when it assessed the ship at “low risk” of COVID-19 being onboard
was flawed:
86.1 The risk assessment form had not been updated to include as one of the
epidemiological criteria - travel from any country in the last 14 days and
remained limited to travel from China, Iran, South Korea or Italy.93 Had the
risk assessment form been updated, all passengers and crew onboard the ship
would have fulfilled the epidemiological criteria rather than “0”.
86.2 The risk assessment process did not take account of possible asymptomatic or
pre-symptomatic cases of COVID-19 onboard the Ruby Princess on 18 March
2020 because the CDNA guidelines case definition at the time did not include
this;94
86.3 The risk assessment placed focus on whether there was an outbreak of
influenza-like-illness (ILI) (1%) which is only a subset of respiratory symptoms
consistent with COVID-19;95
86.4 The threshold of 1% ILI being a trigger for concern that there was COVID-19
circulating onboard the ship was entirely misplaced given the transmissibility
of the virus;96
86.5 The Expert Panel did not place any significance on the fact that hundreds of
passengers had travelled from the United States prior to embarking on the
Ruby Princess on 8 March 2020;97
86.6 The information in the ARD log was not up to date and in fact the number of
persons with respiratory symptoms was increasing;98
92 Transcript of 10 June 2020, p 1136-1137. See also: Transcript of 18 March 2020, p 1560.93 Annexure 50 to Exhibit 29 being the completed Risk Assessment Form for the Ruby Princess on 18 March2020.94 Transcript of 10 June 2020, p 1204.95 Transcript of 10 June 2020, p 1195.96 Transcript 18 June 2020, p1562.97 Transcript of 10 June 2020, p 1140.98 Transcript of 10 June 2020, p 1162.
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87. Further, 29 swabs onboard the Ruby Princess to test for all passengers and crew that
presented with symptoms consistent with COVID-19 during the voyage was
insufficient.99 While Dr Tarling gave evidence that this was a reasonable number in
light of the expected number of passengers and crew demonstrating ILI symptoms,100
this does not take into account that symptoms consistent with COVID-19 extend to all
symptoms of ARI and are not limited to ILI symptoms. The number of persons with ARI
symptoms was in the hundreds on both the voyage concluding on 8 March 2020 and
the voyage concluding on 19 March 2020.
88. NSW Health took no meaningful steps to ensure cruise ships complied with its
requirement that 2 swabs be taken from anyone with respiratory symptoms except to
try to supplement these if and when it boarded a cruise ship.101 However, this did not
occur on the Ruby Princess on 19 March 2020 because it was deemed low risk and as
a result, no medical team boarded the vessel.
Department of Agriculture, Water and Environment
89. It is apparent that the questions in the MARS declaration in operation between 16-19
March 2020 were also not updated to capture the 10 March 2020 change to the CDNA
Guidelines definition of a suspect case of COVID-19. That is apparent because the
questions were still aimed at travel to China and/or Iran and/or Republic of Korea
and/or Italy rather than all international travel. Therefore, when the Ruby Princess
did not provide an affirmative answer to any of the COVID-19 questions, an automatic
notification to the Maritime National Coordination Centre (MNCC) was not triggered
at that point.102
90. The Maritime Travellers Processing Committee (MTPC) granted permission to the
Ruby Princess to arrive and depart at Australian ports in accordance with s 58 of the
Customs Act 1901 (Cth) and s 247 of the Biosecurity Act 2015 (Cth).
99 For example, see the Risk Assessment form for 18 March for Ruby Princess showing only 10 swabs availablefor COVID-19 testing: Annexure 50 to Exhibit 29 when the number of available swabs should have been at least100: Transcript 16 June 2020, pp 1405 - 1406.100 Statement of Dr Tarling, dated 29 June 2020, [67]-[68].101 Transcript 16 June 2020, p 1398; Transcript of 17 June 2020, p 1435-1443.102 Commonwealth Voluntary Statement, 12 June 2020, [93]-[95].
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91. When Mr Murray (Border Force Supervisor, Shipping Operations) spoke to Ms Valerie
Burrows (Sydney Port Agent Manager, Carnival Australia), she advised him that NSW
Health had deemed the ship a ‘low rating’ and advised that it could disembark at the
requested time.103
92. What ensued was a further relay of second-hand messages. It does not appear anyone
from NSW Health spoke to a Commonwealth officer with respect to the Ruby Princess
on the evening of 18 March 2020.104
93. The communication line for granting pratique was not clear. The first contact between
Mr Odermatt from the Department of Agriculture and Ms Ressler from NSW Health
was around 7:31am on 19 March 2020 when Ms Ressler assured him that the vessel
had been assessed as ‘low risk’ and not to be concerned about the swabs being tested
for COVID-19 and pratique was granted shortly afterwards.105
Lack of precautions taken to protect crew members and onshore workers when passengers
disembarked on 19 March 2020
Crew members assisting passengers were not appropriately socially distanced and
wearing PPE
94. The expert opinion of Professor Kelleher and Professor Grulich is that ‘if it was possible
for disembarkation to be staged and gradual, to allow social distancing, this may have
reduced the transmission between passengers and between passengers and crew’.106
95. The NSW Health Media Release dated 12 March 2020 had advised all public members
who had travelled overseas to attempt to keep 1.5 metres between yourself and
others.107
96. Despite the guidance on social distancing in the 12 March 2020 NSW Health Media
Release, no advice regarding disembarkation procedures was provided to the cruise
103 Commonwealth Voluntary Statement, 12 June 2020, [122]-[126].104 Commonwealth Voluntary Statement, [98].105 Commonwealth Voluntary Statement, 12 June 2020, [79] and [97], [165] - [169].106 Exhibit 99, Expert Report of Professor Kelleher and Professor Grulich, dated 17 June 2020, p 8.107 Tab 6, page 24 of the annexures to Exhibit 57, Dr McAnulty’s statement dated 15 June 2020.
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line industry, including Princess Cruise Lines Limited and the management on the Ruby
Princess on 18 March 2020.
97. The evidence of Dr McAnulty, Executive Director of Health Protection NSW Health,
was that it would have been ‘desirable’ for the passengers to be socially distanced
when disembarking and that this should have been supervised by cruise ship
employees and Commonwealth and State officers but he was not aware of any steps
by NSW Health to enforce this on 19 March 2020.108
98. All of the passengers were allowed to disembark on 19 March 2020 without any
assessment from NSW Health including the 120 passengers onboard who had
reported to the medical centre and the 11 patients that were “suspected COVID-19”
cases, although they were disembarked last.109 Ninety-eight crew members also
disembarked after the passengers on 19 March 2020.110
99. There is evidence that passengers disembarked in groups of either ‘between 50 and
20’111 or ‘about 100’ leaving every 5-10 minutes.112 Passengers estimated there were
‘one hundred’ or a ‘couple of hundred’ other passengers in the same area when
disembarking.113
100. Only those passengers who had reported respiratory symptoms were provided with
sanitiser and masks on the morning of arrival in Sydney114and not all passengers were
wearing masks during disembarkation.115 The crew were all lined up and waving as the
passengers walked past them (within 30-40 cm) and down the gangplank,116crew
108 Transcript 18 June 2020, pp 1512 - 1514.109 Statement of Christopher Townsend, NSWA, 29 April 2020, [21]-[22].110Mr Charles Verwaal, Hotel Manager, Ruby Princess, Transcript 23 April 2020, p 145, line 1 - 28111 Mr Charles Verwaal, Hotel Manager, Ruby Princess, Transcript 23 April 2020, p 136, l 38-42.112 Mr Paul Mifsud, Senior Director Port Operations (Asia Pacific) for Carnival), Transcript 11 May 2020, p 881, l23-44; Statement of Percy Anderson, dated 24 April 2020, [12]; 112 Exhibit 71, Statement of Jill Whittemore,dated 28 April 2020, [24].113 Exhibit 63, Statement of Percy Anderson, dated 24 April 2020, [12]; Exhibit 71, Statement of JillWhittemore, dated 28 April 2020, [24].114 Exhibit 80, Statement of Lynette Jones, dated 21 April 2020, [22]; Exhibit 86, Statement of Paul Reid, dated15 May 2020, [13].115 Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [31]; Exhibit 83, Statement of SharonSchofield, dated 12 May 2020, [17].116 Exhibit 63, Statement of Percy Anderson, dated 24 April 2020, [12]; Exhibit 71, Statement of JillWhittemore, dated 28 April 2020, [25]; Exhibit 90, Statement of Kristy Ann McMahon, dated 7 May 2020,[19].Ms Jones: Transcript 23 June 2020, p 1824, l 1-10.
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helping passengers were not wearing gloves;117 crew openly connected with
passengers118 and at least one crew member hugged a passenger while she was
disembarking.119
101. When the paramedics from the NSW Ambulance arrived to transfer the two
passengers suspected of COVID-19 to the Royal Prince Alfred Hospital, staff on board
the ship did not have full PPE on and the staff did not appear concerned.120
Onshore workers were not informed about the risk of COVID-19 and could not take
precautions themselves
102. When questioned about what steps were taken to put the employers of onshore
workers on notice of the potential risks of COVID-19 from the passengers and crew
disembarking in groups of 100, 5-10 minutes apart on 19 March 2020, Mr Mifsud,
Senior Director Port Operations (Asia Pacific) for Carnival replied that there was ‘no
direct contact’ but that the risk of any COVID-19 cases would all get reported via the
Ship’s doctor to Agriculture and NSW Health.121
103. There is no evidence before this Special Inquiry of any steps taken by either the
Department of Agriculture, Water and the Environment or NSW Health to alert the
employers of portside workers (such as the towage company, Engage Marine, the
mooring company, Ausport Marine and the bunkering company, Inco Ships, or the
employees involved in stevedoring functions such as baggage handling) of the risk of
COVID-19 amongst the passengers and crew onboard the Ruby Princess on 19 March
2020.
104. Julie Taylor, Duty Manager, Cruise Operations for the Port Authority, is the person
responsible for ensuring that the Overseas Passenger Terminal (OPT) is in good
working order, fit for purpose and safe for customers and stakeholders.122 Ms Taylor
117 Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [31].118 Mr Reid: Transcript 23 June 2020, p 1884-1885.119 Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [24].120 Statement of Andrew Bibby, NSWA, 24 April 2020, [16].121 Transcript 11 May 2020, p 891, line 11-26.122 Exhibit 43, Statement of Julie Taylor, Port Authority, dated 13 May 2020, [4].
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arrived at the Overseas Passenger Terminal at 5:30am on 19 March 2020. Her
evidence was that:
104.1 she was unaware any passengers had been in isolation;123
104.2 Carnival Plc employees, Bibi Tokovik and Valerie Burrows were reluctant to
inform her there had been passengers in isolation and that swabs had been
taken to be tested for COVID-19. They told Ms Taylor that there was ‘no reason
they would normally let her know this information’ which Ms Taylor
understood to be a reference to there being other reporting channels for such
information that did not include Duty Managers;124
104.3 Ms Taylor was wrongly informed that the test results were “all clear” which
she passed on to Mr Rybanic.125
104.4 Ms Taylor did not give evidence that she was wearing PPE on 19 March 2020.
105. It is evident that neither the Port Authority, NSW Health, Dept of Agriculture or any
other government entity took any steps to put Ms Taylor on notice of the potential for
COVID-19 cases among the passengers and crew.
106. Professor Ferson informed Mr Rybanic that none of his staff needed to quarantine
because they did not have face to face contact for longer than 15 minutes.126
However, disembarkation took approximately 3.5 hours.127 A passenger, Mr
Annesley, gave evidence to the Commission that there was a group of about 600 -800
people at the Overseas Passenger Terminal (OPT) on the morning of 19 March 2020
when he went to collect his mother-in-law.128 None of the people in this group were
wearing masks129 and they appeared to be waiting for transport.130 The passengers
were in the OPT waiting for transport to arrive and it is likely this time exceeded 15
minutes for some if not a majority of these passengers.
123 Exhibit 43, Statement of Julie Talyor, Port Authority, dated 13 May 2020, [60].124 Exhibit 43, Statement of Julie Taylor, Port Authority, dated 13 May 2020, [63] –[64].125 Annexure 17 to Exhibit 43, Statement of Julie Taylor, Port Authority, dated 13 May 2020.126 Exhibit 21 Statement of Robert Rybanic, Port Authority, dated 21 April 2020, [24].127 Exhibit 43, Statement of Julie Talyor, Port Authority, dated 13 May 2020, [54].128 Transcript 22 June 2020, p 1724.129 Transcript 22 June 2020, p 1725.130 Transcript 22 June 2020, p 1733.
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107. This evidence clearly demonstrates that there needs to be more prompt and clear
reporting to employers of portside workers and the Unions as to the risk of COVID-19
among passengers and crew disembarking from vessels so that WHS Act obligations
can be properly met. It goes without saying that in the absence of knowing about a
risk, the employer of the waterside workers could not have taken the necessary steps
to ensure the safety of their employees – such as directing them as to distancing,
protocols, and PPE.
Decision to keep crew members on board the ship after the approximately 2400 passengers
and 98 crew members had disembarked on 19 March 2020
108. By 12pm on 20 March 2020, NSW Health was aware that 2 passengers and 1 crew
member, Mr Marbiog, had tested positive to COVID-19. A decision was made to keep
the approximately 1000 crew members onboard the ship, where they remained for
around one month before half of them were repatriated on 21 April 2020 and the
remainder set sail on the Ruby Princess to its next port, Manila, where it is still docked.
109. By 23 April 2020, 203 crew members had tested positive to COVID-19.131
110. On 27 March 2020, Greg Hunt, Minister for Health, enacted the Biosecurity (Human
Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency
Requirements) Determination 2020 (Cth) which, subject to limited exemptions,
required all cruise ships leave Australian waters as soon as practicable.
111. On 28 March 2020, the Public Health (COVID-19 Maritime Quarantine) Order 2020
(NSW) directed that a person who arrived in New South Wales on a vessel must not
disembark from the vessel unless the person is authorised to do so by the
Commissioner of Police or is required to do so because of an emergency. The
Commissioner of Police was required to ‘have regard to’ any advice of the Chief Health
Officer. On disembarking, the person was required to immediately go to a quarantine
facility or go into medical treatment. This order effectively placed decisions regarding
the health and safety of the remaining crew members onboard the Ruby Princess in
131 Exhibit 57, Statement of Dr McAnulty, dated 15 June 2020, [117] –[120].
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the hands of the NSW Police Commissioner – who had no medical expertise and no
familiarity with maritime procedures and processes.
112. The Public Health Act 2010 applies to vessels within the territorial waters of the State,
however, this situation whereby crew who may be ill remaining on-board a cruise ship
had not been adequately considered by NSW Health officials prior to it occurring and
their involvement in daily teleconferences with management of the ship did not
prevent the spread of COVID-19 among the crew.
Insufficient consideration given to the situation of crew members by NSW Health and
Commonwealth Department of Health procedures
113. The draft “16 February 2020 Cruise Ship Screening Procedure for Ports of First Entry
into Australia”132 describes as a scenario ‘where there is a respiratory outbreak and
the swabs test positive to COVID-19, the passengers and crew are to be placed in home
quarantine for 14 days’.
114. However, no consideration was given to how crew were to be placed in ‘home
quarantine’. Very few crew members on the Ruby Princess were Australian residents
and that is usually the case on most of the cruise ships that come to Australia – they
are mainly overseas residents.133
115. Dr Tobin gave evidence that ‘home quarantine’ could be similar to home and consisted
of various options, such as a hotel, and could include remaining on the vessel if there
was more room onboard the ship once the passengers had disembarked.134
116. The “19 February 2020 Draft Cruise Ship COVID-19 Assessment Procedure for Ports of
First Entry into Australia”135 contains examples directed only to ‘passengers’ and there
are no references to the crew.136 It uses phrases such as ‘isolation’ and ‘home
quarantine’ without providing any guidance as to how that would work in practice for
132 Tab 10 to Exhibit 29.133 Transcript 10 June 2020, p 1146-1147.134 Transcript 10 June 2020, p 1145.135 Tabs 18 and 20 to Exhibit 29.136 See for example Transcript 15 June 2020, pp 1292, 1295, 1296; Transcript 16 June 2020, p 1409-1410;Transcript 18 June 2020, p 1535.
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crew members, many of whom are from developing countries and have rights to
repatriation. 137 The repatriation rights arise under the Seafarers Employment
Agreements138 and also ss 5 and 6 of the Merchant Shipping (Repatriation) Regulations
2013 (Bermuda).
117. Some of the doctors consulted about the draft procedure believed this to include
remaining onboard the ship where others considered this to mean off the ship. Dr
Gupta agreed that ‘there could have been more specific consideration given to the
position of crew members disembarking, either because of being a positive case or
being a possible positive case or simply disembarking’.139
118. The “Enhanced COVID-19 Procedures for the Cruise Line Industry dated 3 March
2020”140 (on page 3) sets out scenarios for when ‘COVID-19 testing is recommended’
and ‘If COVID-19 testing is positive’. The term ‘traveller’ is used to encompass both
passengers and crew.141 Dr Tobin gave evidence that he understood there would be
more challenges the ship would have to address for crew isolation than passengers
but it was left to the ship to work out the best way to enforce guidance on isolation.142
While a representative from the Cruise Line Industry Association (CLIA) was consulted;
he was not aware that any union had been consulted during the course of preparing
this guidance on the situation of crew members.143
119. The “Enhanced COVID-19 Procedures for the Cruise Line Industry dated 9 March 2020”
also omit the word crew in various passages144 and also use the word ‘traveller’ to
refer to both passenger and crew in scenarios where COVID-19 testing is
recommended and COVID-19 testing is positive without further consideration of the
specific circumstances of crew.145
137 Transcript 15 June 2020, p 1294; Transcript 16 June 2020, p 1412.138 Referred to in paragraph 37.5 above.139 Transcript 16 June 2020, p 1410 – p 1411.140 Tab 30 to Exhibit 29.141 Transcript 10 June 2020, p 1150, l 30- 47.142 Transcript 10 June 2020, p 1151, l 1-10.143 Transcript 10 June 2020, p 1151, l 15-21.144 Transcript 15 June 2020, p 1298, l 14-20.145 Transcript 15 June 2020, p 1298,
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120. Procedures for managing confirmed cases of COVID-19 in passengers and crew set out
in the “26 February 2020 draft policy” was not finalised at the date of the Ruby
Princess’ docking in Sydney on 19 March 2020 because it was awaiting ‘whole of
government advice’ about accommodation options for relocating passengers and
crew.146 In an earlier draft, Dr Hess had raised concerns about what would happen to
crew in such situations but it was not known whether these concerns were followed
up.147 Similarly, the COVID-19 Response – Cruise Ships Screening Procedure included
a comment from Ms Ressler ‘need guidance for management of crew’ and Professor
Ferson was not aware if this comment was ever followed up148 and there are further
examples where reference to the crew is omitted by error on page 13 where it states
that ‘symptomatic passengers who need to travel to reach home may do so, however,
ensure they have a supply of masks and hand gels to use’.149
121. When developing these procedures, Dr Gupta was alive to the need to seek
operational advice about logistics such as isolation, transport, accommodation,
isolation packs, food, welfare and single accommodation and acknowledged that she
did not consider consulting the ITF or the MUA for advice about these issues.150
122. The lack of consistent attention to crew throughout these procedures, either by
omitting them where they ought be included or not giving them explicit attention
where their circumstances differed, is apparent in reviewing these procedures and
guidelines.
123. The Unions contend that there should have been more explicit attention to the specific
circumstances of crew and the risk of COVID-19 to them when developing these
procedures.
Decision regarding keeping the crew on the ship
124. Professor Ferson agreed with the Special Commissioner that there was no specific
attention given in the drafting of the NSW procedures to the aftermath of
146 Tab 57 to Exhibit 29, p 3 and Transcript 10 June 2020, p 1154.147 Transcript of 16 June 2020, p 1414.148 Transcript of 15 June 2020, p 1297, l 43-46.149 Transcript of 15 June 2020, p 1298, l 1-10.150 Transcript of 16 June 2020, pp 1412 - 1413.
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disembarkation of passengers, when crew would in all likelihood remain on board
unless removed.151
125. The National Protocol For Managing Novel Coronavirus Disease (COVID-19) Risk from
Cruise Ships was developed without consultation with the Unions.
126. Initial drafts were provided to Professor Ferson and it did not occur to him during his
review of them to ask for a specific section within the Protocol for dealing with the
case where crew were to remain on board the vessel.152
127. The Information Sharing Forum which is referred to on page 11 to share information
in a timely manner and promote consultation with stakeholders included
representatives of the affected cruise ship but not any unions including the Unions in
these proceedings. Dr Tobin was not aware of any reason for this.153
128. The Enhanced COVID-19 Procedures for the Cruise Line Industry dated 9 March
2020154(on page 3) provide guidance to cruise ship operators about what will happen
if a ‘traveller’ (which is understood to refer to both passengers and crew)155 is a
confirmed as a COVID-19 case. It states they will be hospitalised in isolation. This did
not occur for Mr Marbiog who tested positive on 20 March 2020 and it is not clear
when the other crew that tested positive were eventually hospitalised. It also states
that that ‘NSW Health will identify suitable accommodation for all travellers identified
as close contacts to undergo their period of quarantine. It is expected that this will
happen onshore’.
129. Dr McAnulty was peripherally involved with advice given to management of the Ruby
Princess about the crew. He stated that ‘medical advice from the Ruby Princess was
that it was in the best interests of the crew for them to remain on board as the
passengers had left and there was much more space for them to be able to isolate
effectively and that Princess Cruises was following the American CDC Guidelines for
151 Transcript 15 June 2020, p 1293, l 46-47 and p 1294.152 Transcript 15 June 2020, p 19 - 26.153 Transcript 10 June 2020, p 1153, l 27 to 32.154 Tab 44 to Exhibit 29.155 Transcript 15 June 2020, p 1298.
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management of COVID-19 on ships’.156 He did not know if there were discussion about
removing Mr Marbiog, the crew member who had tested positive on 20 March 2020,
from the ship.157
130. Professor Ferson gave evidence that he was involved in a teleconference with officers
of Carnival Plc on 20 March 2020 about the management of the crew onboard the
ship.158 He understood that crew were to be placed in individual cabins159 but did not
know what consideration, if any, was given to disembarking crew who were exhibiting
symptoms to ensure their safety and to protect other crew from the risk of
infection.160 The Cruise Ship Surveillance Program of SESLHD ceased having any
involvement after 20 March 2020.161
131. Dr Selvey, who was involved in a teleconference with either Mr Little or Dr Tarling on
20 March 2020, gave evidence that during this discussion, Carnival Plc informed her
that it was ‘their preference to keep all their crew, including the crew member who
had tested positive, on board the ship and to manage the outbreak according to the
United States Centre for Disease Control Plan for Management of COVID-19 on a
cruise ship’. When asked if NSW Health had provided Princess Cruises with any
alternative accommodation options to consider when it made that decision, Dr Selvey
stated that ‘a request was not made of New South Wales Health’.162 No advice was
provided to Princess Cruises to remove Mr Marbiog and Dr Selvey could not recall if
advice was provided to Princess Cruises about how to quarantine Mr Marbiog onboard
the vessel.163
132. Unfortunately, there was no consultation with the Unions that were working in the
interest of the crew on behalf of the ITF..
156 Transcript 18 June 2020, pp 1587-1588.157 Transcript 18 June 2020, p 1591.158 Transcript of 15 June 2020, p1300, l 7-12.159 Transcript of 15 June 2020, p 1297.160 Transcript of 15 June 2020, p 1297, l 10-14.161 Transcript of 15 June 2020, p 1300, l 26-29.162 Transcript 29 June 2020, p 2102.163 Transcript 29 June 2020, p 2103 – 2104.
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133. Dr McAnulty did not know if NSW Health provided advice on cleaning of the ship.164
Dr Selvey gave evidence that NSW Health only provided advice to Princess Cruises
about cleaning the vessel ‘some days’ after the positive test results were known on 20
March.165 Professor Ferson understood that crew were to be placed in individual
cabins.166
Testing crew for COVID -19 and Contact tracing efforts
134. All crew onboard the Ruby Princess were deemed ‘close contacts’.167 However, NSW
Health did not advise Princess Cruises to implement a regime of testing because
Princess Cruises had informed NSW Health that it would treat any crew member with
symptoms as being a case of COVID-19’.168 It is noted that tests commenced from 29
March 2020 and continued throughout April but the grounds for selecting crew for
testing is not clear.
135. The Unions submit that all crew members should have been tested for COVID-19 as
soon as it was known that Mr Marbiog had tested positive on 20 March 2020.
136. Dr McAnulty gave evidence of the considerable contact tracing efforts that were made
with respect to passengers of the Ruby Princess between 8-19 March 2020. However,
despite being the author of the report, and its heading on page 5 stating ‘contact
tracing for passengers and crew’, there is no mention of any efforts to contact trace
or give information about the positive COVID-19 results to the 98 crew that
disembarked on 19 March. When asked whether this had occurred, Dr McAnulty
stated that he did not know.169
137. Page 6 of the draft NSW Health Report on the Ruby Princess Cruise of 8 to 19 March
2020,170states that once it was notified of the 3 positive test results, it ‘immediately
informed Carnival and obtained from them their passenger manifest with contact
164 Transcript 18 June 2020, p 1591.165 Transcript 29 June 2020, p 2103- 2104.166 Transcript of 15 June 2020, p 1297.167 Dr Selvey: Transcript 29 June 2020, p 2102.168 Dr Selvey: Transcript 29 June 2020, p 2103169 Transcript 18 June 2020, p 1592.170 Tab 57 to Exhibit 29.
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details for all passengers, and advised them to contact all of their crew about the need
for self-isolation and to monitor for symptoms’.
138. Dr Tobin gave evidence that he was not sure why this approach was taken but it could
have been related to how quickly both passengers and crew could have been
notified.171 When questioned by the Special Commissioner about whether it would
be left to an employer to notify its employees of a potential outbreak in analogous
situations where the employer may be considered to have committed an actionable
wrong against its employees, Dr Tobin stated that this might be one way if NSW Health
wanted the persons concerned to take immediate action and NSW Health might do
follow up communications.172
139. Dr Selvey was not aware of the reason why it was left to Carnival Plc to contact the
crew, particularly the 98 crew that had disembarked on 19 March 2020. She was also
not aware of any steps taken by NSW Health to follow up with Carnival Plc about its
communications with the crew.173
140. That decision-making was unacceptable in circumstances where it is not known
whether the disembarking crew remained employees of Princess Cruise Lines Limited,
thus rendering those employees no longer the responsibility of Princes Cruise Lines
Limited.
Role of SafeWork NSW and Australian Maritime Safety Authority
141. The Unions contend that the limited involvement of NSW Health during this period
was a wholly inadequate response.
142. Further, there is no evidence that either SafeWork NSW or the AMSA was involved or
asked to be involved in monitoring and regulating the health and safety of crew
onboard the ship while docked in Port Kembla until its departure on 23 April 2020.
143. SafeWork NSW is responsible for administering the WHS Act and AMSA is responsible
for seafarer health and safety issues on prescribed vessels engaged in trade on
171 Transcript 10 June 2020, p 1154-1155.172 Transcript 10 June 2020, p 1155, l 32-45.173 Transcript 29 June 2020, p 2102 – 2102.
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international or interstate voyages. It inspects vessels, creates domestic safety
programs, and processes complaints under the Maritime Labour Convention 2006.174
144. By way of Memorandum of Understanding between Safe Work NSW and AMSA, AMSA
is to lead investigations involving ship’s crew and SafeWork NSW is to take the lead in
incidents involving personnel working on New South Wales wharves.175
145. While the Ruby Princess was docked within the territorial waters of New South Wales,
it is arguable that Princess Cruises Lines Ltd was a PCBU for the purposes of s 5 of the
WHS Act. As such it had a duty to ‘ensure, so far as is reasonably practicable, that the
health and safety of other persons is not put at risk from work carried out as part of
the conduct of the business or undertaking’: s19(2) of the WHS Act. Further, it had an
obligation to consult with the workers who are to carry out work for the business or
who are likely to be affected by a health or safety matter: s 47 WHS of the Act.
Consultation includes sharing relevant information with the workers, giving them a
reasonable opportunity to express their views and to contribute to the decision
making process, taking into account the workers’ views and advising them of the
outcome of the consultation process in a timely manner: s 48 of the WHS Act.
Consultation is required, inter alia, when identifying hazards and assessing risks to
health and safety from the work and making decisions about ways to eliminate or
minimise those risks: s 49 of the WHS Act.
146. Furthermore, as set out above, Article IV(1) of the Maritime Labour Convention
provides that ‘every seafarer has the right to a safe and secure workplace that
complies with safety standards’ and Article IV(4) of the Maritime Labour Convention
provides that ‘every seafarer has a right to health protection, medical care, welfare
measures and other forms of social protection’. Regulation 5.2.1 of the Maritime
Labour Convention sets out the procedure for inspections by authorities for the
purpose of reviewing compliance with the requirements of the Maritime Labour
Convention including rights to health, safety and onboard medical care.
174 See https://www.amsa.gov.au/vessels-operators/seafarer-safety (viewed 8 July 2020). See also thefunctions of AMSA set out in s 6 and 7 of the Australian Safety and Maritime Authority Act 1990 (Cth).175 Schedule 2, Class A on page 11 of the Memorandum of Understanding between Safe Work NSW and AMSA.
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147. Regulation 5.1.4 of the Maritime Labour Convention (Inspection and Enforcement)
provides for the relevant regulator to have in place a system of inspection and for
enforcement. Regulation 5.2 is about enabling the regulators in each nation to
implement its responsibilities under the Convention under a system of international
cooperation for the implementation and enforcement of the Convention standards on
foreign ships.
148. In that context, Regulation 5.2.1 provided that AMSA (the regulator in Australia) to
undertake ship inspection for the purpose of reviewing compliance with the
requirements of the Convention (including seafarers’ rights) relating to the conditions
of seafarers including health and safety and On-board medical care.
149. Pursuant to Regulation 5.1.4, AMSA was able to board the Ruby Princess if it held the
belief that the working and living conditions did not conform to the requirements of
the Convention.
150. There is little doubt that AMSA should have had a heightened concern about COVID-
19 risk to the health and safety of the crew
151. Neither Work Safe NSW nor AMSA took appropriate steps, in the context of the
heightened risks to the health and safety of crew from COVID-19, to ensure the Ruby
Princess was a safe workplace nor to ensure that crew had adequate medical care
arising from COVID-19.
RECOMMENDATIONS
152. The Unions submit that the evidence demonstrates a systemic failure by government
and companies involved in the cruise industry to manage the risk of COVID-19
infection among crew and onshore workers in the cruise ship industry in New South
Wales. The Unions consider that there has been scant regard given to the situation of
crew members, who comprised one third of the persons onboard the vessel, when
developing procedures that critically affected their health and safety and a total failure
to consult with the relevant Unions about such measures, despite both NSW Health
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and the Commonwealth Department of Health consulting with the CLIA about such
measures.
153. The Unions consider that the following recommendations should be made.
Decision-Making
(1) That the NSW Government propose to the Commonwealth its preparedness to
work with the Commonwealth to reform Australia’s biosecurity arrangements
by:
a. amending the Commonwealth Maritime Arrivals Reporting System
(MARS), the NSW Health Pre Arrival Risk Assessment and Acute
Respiratory Diseases (ADR) Log reports, and the PANSW Biosecurity
Declaration to provide clear instructions to ships’ masters on the quality
and detail of reporting, that must contain co-signing by the chief onboard
officer responsible for crew and passenger health;
b. ensuring there is a common and highly precautionary threshold standard
used by NSW Health to determine risk of community transmission of a
communicable disease;
c. substantially increasing penalties for false or misleading or inadequate
human biosecurity information provision by ships masters and cruise line
companies;
d. establishing a ship monitoring and audit system to ensure the ongoing
integrity and veracity of ship human biosecurity reporting to NSW Health;
e. requiring that the state agencies responsible for human biosecurity
health assessments of crew and passengers be mandated to undertake
comprehensive onboard health assessment of crew and passengers in
circumstances where the World Health Organisation or Australian
biosecurity officials have declared an outbreak of a communicable
disease, before any other onshore workers are permitted to board a ship
and before approval is given for ships to disembark crew and or
passengers; and
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f. requiring that all biosecurity, immigration, customs and marine agencies
develop and implement, and make public, appropriate interagency
communication protocols that ensures full disclosure of ship reporting
under MARS to other agencies including SafeWork NSW and AMSA, and
build those protocols into risk management systems.
Establishment of an NSW international cruise shipping commission
(2) The establishment of an international cruise shipping commission which would
provide a framework to coordinate the operation and regulation of
international cruise ships when interfacing with NSW ports.
The objective would be to ensure that NSW maximises the economic and social
benefits from cruise shipping, a vital component of the state’s economic
security, and to ensure the cruise shipping can sustain its social licence to
operate in NSW following the COVID-19 pandemic that had a major impact on
the sector.
The commission would also be responsible for ensuring there is an appropriate
interface and clearly defined responsibilities and procedures within and
between the many agencies that have oversight of Australian laws impacting
on international cruise shipping.
Such a commission would also provide for the cruise line companies, and their
representatives, like the Cruise Lines International Association (CLIA) and port
agents, and the workforce, represented by their labour unions, to partner with
government in ensuring the industry can rebuild brands and consumer
confidence and adopt better corporate governance, public health and work
health and safety practices that will deliver a better and safer cruise experience
for both passengers and crew.
The commission would be responsible for overseeing the coordination and
efficient operation and interaction of each of the NSW agencies and its
stakeholders that interface with cruise shipping in Australia, covering:
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a. NSW Government support for the future development and growth of a
safe and prosperous international cruise ship industry that uses NSW
ports and contributes to the NSW economy;
b. Public health standards for passengers, ships’ crew, the shoreside
workforce that interface with cruise ships and the wider NSW
community;
c. Ship safety, including biosecurity (including ship pollution derived from
IMO Conventions); and human biosecurity and the interaction between
marine laws and biosecurity laws;
d. Work health and safety (WHS) and welfare of ships’ crew and port
workers (derived from ILO Conventions) and including the interface with
public health and human biosecurity laws and procedures;
e. Labour standards and modern slavery (derived from the ILO Core Labour
Conventions and the Maritime Labour Convention);
f. Seafarer rights including representational and ship and workforce access
rights (derived from ILO and IMO Conventions);
g. Ship crew change processes and procedures;
h. Border security, customs, immigration, taxation and crimes at sea;
i. The interface with domestic shipping and ports, and service providers
(including port agents) to cruise ships in NSW waters;
j. Training and instruction of public agency officials and cruise industry staff
that are responsible for administering laws and procedures.
k. One of the first tasks for the commission should be to review and report
on:
- The ways that the failures of the WHS system applying to cruise ships
and associated regulatory arrangements revealed in the Ruby Princess
case could be reformed and made fit for purpose, with a view to
improving the health impacts of crew interaction with passengers.
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- Improvements in cruise ship operator public health practices onboard
cruise ships.
- The processes and procedures surrounding public health reporting and
assessment standards, pratique and the interface with harbourmaster
functions, including the quality of authorisations of statutory
appointments and monitoring of those authorisations to ensure the
integrity of statutory intent.
- Interagency communication and communication protocols.
- Ways that ships’ crew can be appropriately represented and accessed
by labour unions and crew welfare organisations whilst in NSW ports.
It is our view that the cruise shipping commission be a tripartite body that is
coordinated by Transport for NSW and include representatives from key
government agencies like NSW Health, the Port Authority of NSW, SafeWork
NSW, the cruise industry and maritime labour unions, including the ITF.
Given the large number of agencies with a direct interest, it may be appropriate
that the commission be advised by an industry reference group comprising
representatives of all government agencies, including Commonwealth
agencies like the Australian Maritime Safety Authority (AMSA), Department of
Health, Department of Home Affairs (Australian Border Force) and the
Department of Agriculture, Water and the Environment.
(3) When collecting human biosecurity information from cruise ships, the relevant
government authorities should stipulate that the cruise ship operator has
announced to crew that they must report any relevant symptoms to the
medical centre and must take steps to ensure this information is given to crew
in languages in which they understand.
(4) Section 91B of the Marine Safety Act 1998 (NSW) should be amended so that
it is an offence to provide false information to a harbour master.
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(5) The Marine Safety Act 1998 should be amended so that the Port Authority’s
functions explicitly refer to ensuring the work health and safety of all portside
workers.
(6) Clear guidance must be given to cruise ship operators either from NSW Health,
Safe Work NSW or the Australian Maritime Safety Authority about the
protocols to protect crew members from contracting COVID-19 onboard a ship
that departs and enters New South Wales territory, including guidance on
accommodation, quarantine and disembarkation.
(7) The relevant government authorities must notify the employers of and unions
covering port side workers of any suspected case of COVID-19 onboard a vessel
so that the appropriate risk assessments may be undertaken and control
measures put in place in accordance with the obligations under the WHS Act.
Further, this protocol would allow workers at high risk (co-morbidity, over 60
etc.,) to elect not to work.
The Port Authority of NSW
(8) The Port Authority’s performance as an AMSA authorised Vessel Service Traffic
(VTS) provider under Marine Order 64 (Vessel traffic services) 2013 be
reviewed by AMSA or an independent auditor, and at the very least AMSA
should impose new conditions on PANSW as an approved VTS provider
requiring it to:
a. develop, in consultation with stakeholders, a new risk assessment
framework that addresses work health and safety risks for pilots and port
workers such as the risks arising from the presence of a communicable
disease such as COVID-19;
b. that the new protocols include a publicly available Memorandum of
Understanding or similar instrument setting out cooperative information
exchange and communication arrangements between the Port Authority
and AMSA, and that part of that communication require the Port
Authority to convey decisions arising from communication and
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information exchange to the port workforce, maritime unions and
employers of port workers;
c. consult SafeWork NSW, NSW Health, employers of workers who perform
roles at NSW ports and their trade unions on the work health and safety
risks, on new standards (integrated with health agency standards) and
due diligence processes and protocols to ensure risks to the health and
safety of all port workers are taken into consideration in decision making
by the harbourmaster and VTS staff in relation to ship entry to ports in
circumstances where communicable diseases are prevailing and or
pandemics declared; and
d. retrain all VTS staff, including management and the Port Authority crisis
management team, in new risk assessment and risk procedures and
protocols.
(9) That a best practice pilotage and pratique system be established as follows:
a. Before a ship is approved by a NSW harbourmaster to navigate to a wharf
to dock, while it is at an anchorage point, NSW Health be provided with
all MARS human biosecurity information for a stage 1 assessment of the
human biosecurity risk presenting on the ship.
b. That if a stage 1 assessment requires swabs for a communicable disease
to be tested at an onshore testing laboratory, those swabs be obtained
from the ship while at the anchorage point (by Water Police, by
helicopter, by a pilotage ship or other means).
c. That based on the test results from swabs and any other human
biosecurity information required, NSW Health complete a stage 2 human
biosecurity health assessment.
d. That stage 2 human biosecurity health assessment be then provided by
the NSW Chief Human Biosecurity Officer with a recommendation on
pratique to the Commonwealth designated Biosecurity Officer, who then
makes a decision on pratique.
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e. That the pratique decision be then provided to the harbourmaster who
subject to written confirmation from the ship’s port agent that it has
been formally advised of the pratique decision by the Commonwealth
designated Biosecurity Officer, is then authorised to make a
determination (taking into account the usual ship navigation criteria) as
to whether the ship proceeds to berth.
f. Pratique, with whatever conditions are attached to the pratique decision,
can then practically proceed.
(10) That the Port Authority be required to:
a. Determine and publicly promulgate a Memorandum of Understanding
with NSW Health on human biosecurity information exchange based on
MARS reports and health assessments in making a pratique
recommendation to the Commonwealth.
b. Determine and publicly promulgate a Memorandum of Understanding
with Safe Work NSW to activate a communicable disease hazards control
procedure in the event of a communicable disease situation and other
high risk work health and safety situations aimed at ensuring cooperation
between the two agencies to minimise the risk of transmission of a
communicable disease to the onshore workforce at NSW ports.
c. Determine and publicly promulgate a Memorandum of Understanding
with AMSA to ensure consistent and quality decision making in relation
to decisions of the harbourmaster to approve the release of a vessel for
navigation into international waters in the event of a communicable
disease situation.
NSW Health and Commonwealth Department of Health
(11) That NSW Health and the Commonwealth Department of Health review the
NSW Health (COVID-19 Maritime Quarantine) Order 2020 of 28 March 2020
made under the Public Health Act 2010 (NSW) and the Biosecurity (Human
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Biosecurity Emergency) (Human Coronavirus with Pandemic Potential)
(Emergency Requirements) Determination 2020 of 27 March 2020 made under
the Biosecurity Act 2015 (Cth) to:
a. clarify that any powers given to, in the case of a NSW public health order,
the NSW Commissioner of Police, do not impede the exercise of powers
and responsibilities of officials, such as from the PANSW, SafeWork NSW
and AMSA (as well as its counterpart ship regulators in the nations of ship
registration);
b. ensure that, in the case of a Commonwealth biosecurity determination,
that statutory powers and responsibilities of NSW and Commonwealth
marine, ship, work health and safety and crew welfare regulators are not
impeded.
AMSA
(12) That an independent investigation be conducted into the actions of AMSA to
monitor the health and safety of crew while they were onboard the Ruby
Princess on the shore of New South Wales between 19 March and 23 April 2020
to determine whether AMSA fulfilled its statutory function to inspect vessels
to ensure compliance with the work and living conditions stipulated in Marine
Order 11, Regulation 5.2.1 of the Maritime Labour Convention (Inspection and
Enforcement) and the Merchant Shipping (Health and Safety At Work)
Regulations 2004 (Bermuda).
Workforce training and instruction
(13) That Ministers and heads of both NSW and Commonwealth agencies involved
in Australian biosecurity arrangements, in ship regulation and in work health
and safety and welfare of ship’s crew and landside workforces that interact
with ships, especially those exercising statutory powers, be required to
undertake relevant training and instruction on:
a. The law under which they are appointed;
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b. The law they are required to administer, including marine law; and
c. The exercise of statutory powers;
(14) There be a common set of procedures jointly agreed by NSW and
Commonwealth addressing pratique and harbourmaster functions.
Kylie Nomchong SC Bronwyn Byrnes
Denman Chambers 6 St James Hall Chambers
13 July 2020
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Subject: PANSW - CoronavirusDate: Wednesday, 29 January 2020 at 10:33:05 pm Australian Eastern Daylight TimeFrom: Paul GarreG <[email protected]>To: Cameron Butchart <[email protected]>CC: Philip Holliday <[email protected]>
Cameron, Thanks for your Sme this aTernoon discussing the concerns regarding coronavirus. It is clear that thisserious health issue will develop as the days and week progresses. Undoubtedly, there is a global concernregarding the potenSal spread of this deadly virus. InformaSon is developing on coronavirus and there is a clear aGempt to contain the exposure to the virus.However the maGer has become more prevalent overnight with the Department of Foreign Affairs andTrade downgrading their advice on travelling to China to “Reconsider your need to travel”. It is also clear that there is a gaping hole in Australia’s biosecurity network due to the failure to implementadequate checks for coronavirus infecSons on vessels arriving at Australian ports. The requirement formerchant ships to “self-declare” via the Pre-Arrival Report is woefully inadequate when dealing withpotenSal of biosecurity risks. Any accurate diagnosis of a virus like the coronavirus is leT to medicallyuntrained seafarers as well as Ships Masters who simply would not be familiar with the symptoms anddiagnosis of coronavirus as part of their Medical First Aid on board Ship CerSficate. As you can appreciate, MUA members in the stevedoring terminals are interacSng with ships crewsseveral Smes a day. There has been a vessel which has recently arrived in Port Botany that has been inChina in the last 14 days. The Smeframe being the period of concern from iniSal exposure to symptomspresenSng. The biggest issue being that Australian QuaranSne and InspecSon Service are not inspecSng that vesselnor adequately inspecSng other vessels to give a biosecurity clearance. Instead there is a reliance on the self-assessment in the Pre-Arrival Report. Notwithstanding further consideraSon of the coronavirus and developments in its containment andtreatment, it is appropriate that the Port Authority of NSW compel ships arriving into Port Jackson andPort Botany to be assess by AQIS. The ports do not have access to mass thermal imaging checks like whatis present at the major airports and the biosecurity support is needed in the mariSme industry. As discussed and notwithstanding any other controls:
1. Assessment should be made as to whether a ship has been in China in the last fourteen days. Thiswould happen by way of assessment of the past ten ports visited in line with the usual reporSngfashion.
2. In the circumstance where the ship has been in China in that period, direcSon be given by PANSW
to ships entering into the port to request “praSque” requiring AQIS to provide a biosecurityaboard the ship and not rely upon the Pre-Arrival Report.
Appreciate the heightened sense of awareness that comes with this, but unSl such Sme as this virus iscontrolled, it is appropriate that proacSve steps are taken to provide support to those people who workaboard the ships whilst in the port. Having it asserted at the port level through the PANSW gives a moreproacSve and consistent approach to this maGer as well as authority for ensuring that AQIS are called onto be involved.
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Any assistance that can be given by the VTS at PANSW is appreciated. Happy to discuss further tomorrow. Regards,Paul Paul Garre)Assistant Secretary
Mari<me Union of Australia (Sydney Branch)365 Sussex StreetSydney NSW 2000m: 0418 422 589e: [email protected]
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MUA Submission:
Select Committee on COVID-19
15 June 2020
Australian Senate
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Submitted by email: [email protected] Paddy Crumlin, National Secretary, Maritime Union of Australia A Division of the Construction, Forestry, Maritime, Mining and Energy Union 365 Sussex St, Level 2, Sydney, NSW, 2000 For inquiries contact: [email protected] Website: www.mua.org.au
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Introduction
This submission has been prepared by Maritime Union of Australia (MUA). The MUA is a Division of the 120,000-member Construction, Forestry, Maritime, Mining and Energy Union and an affiliate of the 20-million-member International Transport Workers’ Federation (ITF).
The MUA represents approximately 14,000 workers in the shipping, offshore oil and gas,
stevedoring, port services and commercial diving sectors of the Australian maritime industry. The
MUA is also part of an Offshore Alliance with the Australian Workers Union that jointly organises
workers across the Australian offshore oil and gas industry.
The MUA notes and supports the submissions to the Select Committee from the Australian Council of Trade Unions and the International Transport Workers Federation. The MUA and the ITF represent workers across various areas of maritime operations where workers in those operations were impacted by the COVID-19 pandemic. These include:
• Onshore workers in ports who are required to interact with domestic and international ships docking at Australian ports and with landside workers involved in road and rail transportation to and from ports. International ships include both cargo ships and passenger ships, mainly large cruise ships. These workers include: o Container stevedoring workers (including dockworkers who board cargo ships to
undertake lashing of containers); o Break bulk ship stevedoring workers (including dockworkers who board break bulk ships
to assist with loading and unloading in ship’s hatches); o Cruise ship baggage handlers, operators of gangplanks or passageways used for the
embarkation and disembarkation of passengers and wharf workers that load stores; o Ship mooring workers; o Port security workers.
• On-water services workers servicing cargo and passenger ships i.e. workers involved in towage, mooring, pilotage, bunkering, waste removal.
• Harbour/river ferry workers.
• Shipboard workers (ship’s crew) including (i) marine crew; and (ii) in the case of passenger ships non marine crew (collectively defined as seafarers in this submission).
• Offshore oil and gas industry seafarers servicing oil and gas platforms.
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Contents Summary ............................................................................................................................................. 5
Work of the Select Committee ........................................................................................................... 7
Workplace safety and COVID-19 in Australian stevedoring workplaces ............................................ 7
Case study: Positive COVID-19 test result in a workplace ............................................................ 10
Case study: Dealing with a quarantined worker ........................................................................... 11
Case study: Physical distancing from international arrivals ......................................................... 11
Case Study: Intersection of an economic crisis with workplace safety in a pandemic ................. 12
The public health approach .......................................................................................................... 12
Summary: Significant WHS reform is needed ............................................................................... 13
Fatigue and stress for workers travelling interstate for work .......................................................... 17
Improving JobKeeper ........................................................................................................................ 19
Shipping and supply chain resilience ................................................................................................ 21
Commonwealth-State/NT coordination of shipping and ports requires review .......................... 21
The sovereignty issue – addressing weaknesses in Australian supply chains .............................. 23
Establishing a national strategic fleet and restoring a balanced cabotage regime ...................... 24
Public investment in ships............................................................................................................. 28
Recommendations ........................................................................................................................ 29
Failures in Australian oversight of the international shipping we rely on ........................................ 31
Managing risk in workplaces dealing with international maritime trade ..................................... 32
Case study: COVID 19 on the Ruby Princess and in the NSW cruise ship industry ....................... 33
Failures by the Port Authority of NSW .......................................................................................... 34
Failures by the Australian Maritime Safety Authority (AMSA) ..................................................... 38
Failures by Princess Cruises Lines Ltd ........................................................................................... 42
Failures by the NSW and Commonwealth Health Ministers ........................................................ 44
Case study: COVID-19 on the Al Kuwait livestock carrier ............................................................. 47
Failures by the flag state and employer ........................................................................................ 51
The role of the shipper of the livestock and the WA Government ............................................... 52
Addressing WHS and labour rights issues on international ships operating in Australia ................. 54
Seafarer welfare and communication........................................................................................... 55
A pathway to global reform of international shipping ................................................................. 55
Establishing an International Shipping Commission in Australia .................................................. 57
Annex A: Work rosters in the oil and gas industry during the COVID-19 pandemic ........................ 60
All recommendations ........................................................................................................................ 66
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Summary
The COVID-19 pandemic has had an extraordinary impact on workers in the maritime industry. On the one hand, it has displayed how important the work of maritime workers is to keep the economy going and continue the movement of essential goods. However, the sacrifices and risks that maritime workers have taken to continue their work has not been recognised. Workers have been told to take extreme precautions in their personal life, yet were subjected to employer resistance, discipline and loss of pay if they attempted to take equivalent measures at work. Urgent reform is needed in Australian WHS law and in the organisation and oversight of the domestic and international shipping industry to ensure that it is possible for these industries to carry on safely, for workers and the broader community. The COVID-19 pandemic has revealed critical risks in Australia’s long and fragmented supply chains that arises from the nation’s almost complete dependency on the use of international ships (most on Flag of Convenience registries) not only in our international trades, but in domestic coastal trades. Reform is needed to strengthen supply chain resilience. The development of the Maritime Response Group by the Department of Infrastructure, Transport, Regional Development and Communications (Department of Infrastructure) shows the advantages of a more coordinated approach and government oversight of shipping. Yet much more action is needed to ensure we are equipped to deal with this unfolding global pandemic and any future crisis. There has been a decline in trade through virtually all ports as economic activity slowed. The cruise industry has been shut down entirely, along with jobs supplying and servicing cruise ships. The offshore oil and gas industry has also experienced an abrupt decline, as the price of oil first plunged for geopolitical reasons and then due to oversupply when demand dropped due to the global lockdown. The stress of dealing with the virus at work is now compounded with loss of income and redundancies. Combined with the weakness of WHS law in addressing the power imbalance between employers and workers, this is likely to make workers more reluctant to raise safety issues in the future. The situation of seafarers on international ships is even more acute. On the one hand, most Australian imports and exports are by sea and the Australian economy is highly reliant on the labour of international seafarers. On the other hand, an estimated 200,000 seafarers are stranded on their ships with many forced to work months beyond the end of their contracts. The border restrictions by the Australian and other governments are making it extremely difficult for seafarers to return home and be replaced by new crew. The Australian government must put much more effort into solving this problem. The anti-union political atmosphere fostered by the current government has made workers less safe and less able to deal with the challenge of COVID-19. When workers sought to implement widely accepted public health measures at work, employers were often not agreeable, and when they used their rights to cease unsafe work under the WHS Act, this was too readily labelled ‘illegal industrial action’ and workers were penalised. The crisis has shown the value of union collective agreements. In Australian workplaces covered by union agreements, the MUA has been able to improve safety and significantly reduce the effects of the economic downturn on workers. These have been negotiated outcomes with clear triggers to return to normal operations. Workers without the protection of a union agreement have found their work and livelihood upended, without consultation or recourse. We also note that since the beginning of the pandemic it has become much more difficult to conclude the negotiation of
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enterprise agreements with employers. Given that the percentage of Australian workers covered by union-negotiated enterprise agreements is already quite low, we are concerned that this could be reduced even further. The cases of COVID-19 on the Ruby Princess, other cruise ships, and the cargo ship Al Kuwait have largely been discussed in the media as if we could close our borders to such ships. Yet our current economy is wholly integrated with international shipping and these cases must be examined in detail to understand the complexity and failings of this system, and the failings of the Australian agencies tasked to keep ships and ship’s crews safe. We provide detailed case studies on both of these cases that reveal the source and cause of the crisis in international shipping, the failures of regulation and of gaps in biosecurity and work health and safety arrangements. A key lesson arising from these cases (and from those examined in stevedoring workplaces) is that human biosecurity relies on ensuring that ships and wharves are safe for workers. Biosecurity arrangements at the border are an after-the-event risk management strategy. If ships and wharves as workplaces are safe and free from disease and illness, the chance of infectious diseases spreading in Australia and elsewhere is significantly minimised. In this submission, we make a number of recommendations aimed at:
• Improving WHS legislation and framework to protect workers.
• Assisting workers who must travel interstate for work.
• Improving the JobKeeper package.
• Addressing the systemic failure of international ship regulation, WHS regulation and labour standards applying to international seafarers and application of the rights of seafarers deriving from international Conventions
• Addressing the developing human rights disaster in the international shipping industry.
• The weaknesses in Australia’s domestic shipping arrangements, now dominated by foreign ships, that also reveals the human biosecurity and supply chain resilience risks from virtually 100 per cent reliance on foreign ships for the nation’s domestic shipping task.
The submission outlines a set of reforms at both the international and domestic level that Australian governments, supported by stakeholders, can take, beginning immediately, to resolve the crisis in international ship regulation and management, both cruise and cargo, and in resolving the over-dependence on foreign ships in domestic shipping. The reforms we propose are designed to minimise biosecurity risks, reduce modern slavery risks and which will improve the work health and safety arrangements on ships so they are safe workplaces, improve labour standards for seafarers and ensure seafarers can properly enjoy their rights as provided in International Conventions of the International Labour Organisation (ILO) and International Maritime Organisation (IMO). These reforms, when implemented, will help protect Australians from viral pandemic transmission across borders, ensure seafarers are safe and protected at work and improve Australia’s supply chain resilience. We urge the Senate Select Committee to support the Recommendations proposed in this submission.
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Work of the Select Committee
We thank the Select Committee for its work. Noting that the Committee is holding regular public hearings, we recommend that public hearings be held on the topics below, which we would be happy to contribute to. Recommendation 1: That the Select Committee should inquire into:
• The risks of workplace transmission of COVID-19 and how employers, the WHS framework and WHS regulators are managing this risk
• The implementation of JobKeeper and its effect across various industries
• The failure of Australian agencies responsible for safety and WHS in international shipping, and how this has undermined Australia’s human biosecurity effort and led to the terrible situation of ships’ crew being stranded on international ships carrying Australian imports and exports.
Workplace safety and COVID-19 in Australian stevedoring workplaces
While people were being told to stay home and not to gather in groups larger than two people in their social life, maritime workers were required to keep working, some in workplaces with over 600 workers. Workers, Health and Safety Representatives (HSRs), workplace safety committees and the MUA put considerable effort into rapidly changing systems of work in order to ensure workplaces were as safe as possible. Some employers would not agree to making changes and as a result, workers in two workplaces were stood down off pay, and in a third workplace the employer is suing a union official involved in addressing a COVID safety dispute. All three disputes remain in the Fair Work Commission, and highlight significant deficiencies in our current WHS laws and regulators. Employers (as a person conducting a business or undertaking (PCBU) under the WHS Act) are required to ensure, so far as is reasonably practicable, that they don’t put the health of their workers at risk through work carried out by the business, and must also provide and maintain a work environment that is without risks to workers’ health and safety; provide and maintain safe systems of work which include things like rosters, rotations, work allocation, and the methodology of how work is performed. They must also provide information and training to workers along with health monitoring. Identification, assessment and control of risk requires consultation, under the Act. Risk must be mitigated following the hierarchy of controls implemented in the following order, ranked from the highest level of protection and reliability to the lowest:
1. First and foremost, the operator should seek to eliminate the hazards 2. If that is not possible, substitute the hazard with something safer 3. Isolate the hazard from people 4. Reduce the risks through engineering controls 5. Reduce exposure to the hazard using administrative actions 6. As a last resort, use personal protective equipment (PPE).1
Duty holders (such as employers) are required to work through this hierarchy of controls when managing risk under the WHS Regulations.
1 Safe Work Australia, How to Manage Work Health and Safety Risks, Code of Practice, December 2011, p.13-
15.
8 Figure 1: MUA’s safety guidelines for reducing risk of COVID infection in the stevedoring industry.
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In the case of COVID-19, the most effective control is isolation, and this matches entirely with the public health advice.2 On 27 March 2020, the union released a proposed framework for COVID-19 safety in port workplaces3 that followed the hierarchy of controls, and sought to engage the whole industry in a discussion about how to implement these measures (Figure 1). These measures include:
• Physical distancing: between shifts of workers, between port workers and seafarers, in the use of shared machinery and during break times.
• Increased cleaning in workplaces and access to hygiene facilities and PPE
• Providing paid leave for workers required to isolate
• Workers and HSRs to be involved in all processes Unfortunately, employers ignored these efforts to start industry-wide discussions to bring in a uniform set of standards. Instead employers sought to bring in essential services legislation that would have the effect of limiting workers’ rights,4 including through reviving a defunct Stevedoring Industry Association and petitioning the Governor General. The government later confirmed in teleconferences that it wasn’t within the Commonwealth’s powers to designate stevedoring as an essential service, nor would they pursue with the states. Personal protective equipment (PPE) and the management of individual behaviour are the least-effective controls in the hierarchy, but often these responses were preferred by employers as they involve minimal changes to systems of work. Workers, HSRs and workplace safety committees took up the initiative to introduce the MUA’s COVID safety standards at a workplace level. A few employers readily adopted these measures. However, properly implementing isolation as a control usually involves operational costs, and we found most employers were reluctant to do this. Many workers found themselves in a struggle over who should pay for the introduction of COVID safety measures. Some employers refused even very moderate requests from the workforce, twisting the government’s use of the term ‘social distancing’. In response to requests from workers not to be crowded into a minibus with 8 co-workers in early stages of the pandemic, senior managers at the logistics company Qube told the union “social distancing does not apply in workplaces, but only in social situations”. Some workers are at very high risk, including people with recent heart transplants and undergoing chemotherapy. They cannot attend work without a serious risk to their health. Employers have been reluctant to give these workers additional paid leave to allow them to stay home.
In some cases contractual obligations have been a barrier to social distancing. When tug workers
asked to minimise the time they spent living on board vessels in ‘standby’ (captive time), employers
agreed. However, the agreement was eventually overridden by the Port of Melbourne who required
two tugs to be crewed at all times.
In several cases workers had to cease work in order to get their employer to implement physical
distancing measures in line with health advice, even in workplaces with workers with positive
COVID-19 tests. In three of these cases, employers accused workers and the union of taking illegal
industrial action and have penalised workers and are seeking penalties again the union. These three
disputes are currently in the Fair Work Commission. We outline the detail of these cases in the case
studies below.
2 Department of Health, Coronavirus disease (COVID-19), Information for employers, updated 2 May 2020. 3 Maritime Union of Australia, COVID-19 Maritime Industry Framework, 27 March 2020. 4 Chip Le Grand, Antiquated laws threaten to cut off vital trade in lockdown scenario, Sydney Morning Herald, 24 March 2020.
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The workplace case studies must be considered in light of the extraordinary steps being taken at the
same time to ensure people were being isolated from each other in social situations, briefly outlined
below:
12 March: WHO declares a global pandemic
15 March: All international arrivals must isolate for 14 days
18 March: ‘Do not travel’ advice issued by the Australian government for the whole world. Indoor gatherings of more than 100 people are banned.
19 March: Borders are closed to non-citizens and non-residents
20 March: Indoor gatherings require 4m2 per person
21 March: Non-essential services are closed
24 March: Gatherings are restricted to 10 people when outdoors.
24/5 March: Travel to WA, SA and NT and Qld requires a 14-day quarantine
28 March: Highest number of daily new cases in Australia. Cases double to 3,000 in 3 days.
29 March: Returning international travellers required to quarantine in a hotel for 14 days
29 March: Gatherings limited to two people.
30 March: Strict public health orders to stay at home, enforced by fines5
Case study: Positive COVID-19 test result in a stevedoring workplace
As the pandemic intensified in March, workers and HSRs at the Hutchison container terminal in Sydney attempted to bring in physical distancing measures at work, along with increased hygiene and PPE. The company was slow to implement these measures. On 1 April, a worker was contacted by NSW Health and notified that they had been on a flight with a person who subsequently tested positive for COVID-19. Since taking that flight, the worker had worked six 8-hour shifts at Hutchison, including periods of time when no hand sanitiser was available on site. The worker went to get a COVID-19 test and notified the company. The company did not notify the workforce or union of this risk. At approximately 9am on 3 April, the worker was notified that they tested positive for COVID-19, and they notified the company. A large number of workers were on site at the time. The company offered workers an incentive to finish the required work on the ship as quickly as possible so it could leave port. Once workers finished work, they were notified at about 1pm by email of the positive COVID-19 test result. Workers were confused and angry as to why the company had withheld notification of the results until that time.6 A second case, a close contact of the first, was subsequently identified in the workforce. Initially the company refused to consult with the workplace health and safety committee about the identification of close contacts of the sick worker, and minimised the number of these contacts to reduce the operational impact. After the union took the issue up with NSW Health, eventually, the NSW Chief Medical Officer said they would accept nominations of “close contacts” from the workforce and the union.
5 Calla Wahlquist, Australia's coronavirus lockdown – the first 50 days. The Guardian, 2 May 2020 6 Maritime Union of Australia, Port Botany stevedoring company exposes workers to coronavirus and hides positive test, 6 April 2020.
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The company sought to have workers return to work quite quickly. A workplace Health and Safety Representative (HSR) issued a Cease Work direction under the WHS Act on the basis of the poor measures taken to prevent the spread of COVID-19, and to ensure that further cases did not develop in the workforce when work re-started. The employer was reluctant to comply with this Cease Work order, claiming that there was no ‘imminent and immediate exposure to a hazard’ (as required in the WHS Act) and that workers were taking illegal industrial action. Eventually much stronger measures to prevent the spread of COVID-19 in the workplace were agreed, and work resumed on 12 April. However, workers who self-isolated during this period are still being denied pay and the matter is before the Fair Work Commission. It is our view that the actions taken by this workforce helped prevent a workplace outbreak, but it is unacceptable that they have been docked pay for their efforts.7
Case study: Dealing with a quarantined worker
The close friend of a worker at the Patrick container terminal in Fremantle, who had been in recent contact with the Patrick worker, was placed in quarantine after their close relative tested positive for COVID-19. On 18 March, the worker was rostered to come into work, but the company had not yet made any provisions for workers to be able to take paid leave while isolating or in quarantine. The worker came into work because his sick leave was exhausted, and he voiced his concerns to his workmates. Although the company was notified prior to the worker starting shift, they took no measures to manage the situation and reassure the worker that they could stay home on pay while quarantining. The workforce ceased work demanding that the company take action to reduce the risk of COVID-19 spreading in their workplace. The employer accused the workforce of taking illegal industrial action. The matter is in the Fair Work Commission and the employer is suing the union official who represented workers’ concerns during the incident.
Case study: Physical distancing from international arrivals
Mandatory hotel quarantine for 14 days for all international arrivals (mainly by air) to Australia began on 29 March. On 31 March, wharfies at the DP Word container terminal in Melbourne were required to work on the container ship Xin Da Lian 12 days after it left the port of Taiwan. Department of Health “COVID-19 information for the marine industry” specified that additional isolation measures were required for vessels which had “transited through, any country other than Australia in the last 14 days.” Despite the increasing spread of COVID-19, at that time Border Force were only enforcing a 14-day quarantine period for ships arriving direct from China, and gave the vessel an exemption. We remain unclear on how responsibilities between agencies are distributed in determining whether a vessel is safe to dock. Wharfies refused to work the vessel and were stood down off pay. The company claimed that there was no ‘imminent and immediate exposure to a hazard’ (as required in the WHS Act) and that workers were taking illegal industrial action. Two online meetings took place to discuss workers’ concerns involving the union, DP World, and the Commonwealth Departments of Infrastructure, Health, Agriculture (Biosecurity), Australian Border Force, and the Deputy Chief Medical Officer. The issue of the reliability of the self-declarations required from international ships will be examined
7 MUA, Hutchison Workers Win Strong COVID-19 Measures (15 April 2020) <https://www.mua.org.au/news/hutchison-workers-win-strong-COVID-19-measures>
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later in this submission. But the validity of workers’ concerns was acknowledged at these meetings when the government agreed to some extra validation measures, and measures to restrict the interactions between crew and wharfies, as well as proper provision of PPE. This illustrates the issues that existed and needed to be fixed. Further measures are needed. Workers have still not been paid for the time they took to ensure that the quarantine period was implemented, and the matter is before the Fair Work Commission. The Health and Safety Representatives who lead the process of raising concerns on behalf of the workforce have been subjected to a campaign of psychosocial harassment.
Case Study: Intersection of an economic crisis with workplace safety in a pandemic
Since the dispute outlined above, DP World have announced their intention to make 100 redundancies at their Melbourne terminal, and have also introduced individual performance measures relating to the speed at which workers drive container handling equipment (straddle carriers). The slower the worker drives a straddle, the more they will be penalised un this system. Driving straddle carriers at high speeds has been clearly demonstrated to be an unsafe work practice. For example, on 19 April 2018 a collision between straddle carriers at a container terminal in Sydney lead to a worker falling 7m onto concrete, with injuries that required an induced coma and months of hospitalisation. There are many other examples in Australia and internationally where driving a straddle carrier at high speed has lead them to tip over. Bulk and general stevedoring company Qube has also threatened redundancies in Melbourne and Port Kembla. Where workers and HSRs have raised safety concerns over COVID-19 safety measures and had disciplinary action taken against them or pay docked, this will make them less likely to be confident enough to raise future concerns. If redundancies are announced in their workplace, it ‘puts a target on their back’ as a candidate for compulsory redundancy, anxious about their continued employment, and even less likely to speak up. Australia’s WHS laws do not account for the imbalance of power in workplaces between workers and employers, and do not adequately protect workers and HSRs. Protections for workers and HSRs must be strengthened, particularly in the current economic crisis.
The public health approach
One of the defining features of the COVID-19 pandemic response in Australia to date is the effectiveness of public health annunciation of standards developed to protect all citizens from the catastrophic harm that the pandemic creates if not managed decisively. The standards announced by the new National Cabinet and enforced by the States and Territories have been almost unanimously accepted by Australian citizens, workers and trade unions alike in a spirit of cooperation. The response by employers has been mixed, with too many examples of employers taking advantage of the self-regulatory underpinnings of WHS law to undermine the mandated health advice. The lead agencies of Government, the Chief Medical Officer and Health Departments have applied the standards-based approach of scientifically determined health advice.
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The Commonwealth Department of Health for example, provided standards-based advice on personal hygiene protection, physical distancing, isolation, quarantine and other appropriate practices, all based on advice from the Australian Health Protection Principal Committee (AHPPC). The health authorities, comprising all state and territory Chief Health Officers, chaired by the Australian Chief Medical Officer, is itself advised by 5 standing committees drawn from across all relevant areas of expertise:
• Blood Borne Viruses & Sexually Transmitted Infections Standing Committee.
• Communicable Diseases Network Australia.
• Environmental Health Standing Committee.
• National Health Emergency Standing Committee.
• Public Health Laboratory Network of Australia. This level of cooperation is designed to ensure that the legal responsibilities of the States and Territories vis a vis public health is enforced unilaterally and uniformly. The AHPPC issued 44 Statements between 29 January 2020 and 15 May 2020. An example of its scientifically underpinned standards-based approach that sits alongside the pre-existing health standard regarding social distancing and other risk controls, is the AHPPC statement for managing vulnerable workers of 30 March 2020, where it recommended:
“…that special provisions apply to essential workers who are at higher risk of serious illness and, where the risk cannot be sufficiently mitigated, should not work in high risk setting.”8
The work health and safety (WHS) agencies charged with health safety and welfare at work have accepted and interpreted the advice by producing ‘guides’ as the only non-enforceable rules to apply when protecting workers from the fatal harm that can result from requirements to continue working in a COVID-19 environment without adequate protections in place. If Australia’s WHS laws were appropriately designed, it should have been the standards-based advice provided by health authorities that prevailed in the workplace. In many cases the advice from health agencies has been enforced by each jurisdiction’s public enforcement arm, the Police Forces, based on legislative powers of enforcement including serious criminal offences such as endangerment of life and wide provision for specified on-the-spot penalties for minor infringements of the public health law.
Summary: Significant WHS reform is needed
We support the hierarchy of controls and rights that workers and HSRs have under the WHS legislation. Our experience of trying to reduce risk to workers during the pandemic shows significant problems with:
• Lack of clear minimum standards
• Rights for workers and HSRs to cease work need strengthening: the test of ‘imminent and immediate exposure to a hazard’ is exposing workers to unnecessary risk
• Lack of measures to compel employers to reduce risk according to the hierarchy of controls.
• Lack of guidance material on pandemic response and communicable diseases
8 Australian Health Protection Principal Committee (AHPPC) Advice to National Cabinet on 30 March 2020, Managing vulnerable workers, https://www.health.gov.au/news/australian-health-protection-principal-committee-ahppc-advice-to-national-cabinet-on-30-march-2020
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The public health authorities’ approach, based on a science/standards-based methodology contrasts sharply with the principles underpinning current WHS law operating in all States and Territories in Australia that gave effect to the model Work Health and Safety Act 2011, enacted by the Gillard Labor Government. Australian WHS legislation is founded in the Robens report issued in the UK 1972, which marked an influential shift to “regulated self-regulation” which borrowed from the Scandinavian model to involve workers and management in regulating safety at a workplace level, while making the unsubstantiated claim that they had “a natural identity of interest” on health and safety issues. These reforms meant replacing or reducing regulatory standards that specified how work should be done safely, and introducing “process standards” that regulated how safety was managed in workplaces. Australian WHS law based on the Robens model enshrines the principles of a risk management approach to work health and safety, and duties owed by persons conducting business and undertakings in all Commonwealth and State/Territory jurisdictions where the law applies. It includes the principles of consultation with workers, elected workplace health and safety representatives, and consultative health and safety Committees including both workers and management. Research has established that workers’ participation is critical to improving WHS. However, workers, their organizations, sociologists, and historians have disputed the claim that workers and employers have “a natural identity of interest” on safety. Instead, the evidence shows that the effectiveness of worker participation in improving safety depends on the presence of autonomous worker organization at a workplace level and on support from unions – which employers frequently oppose, and without which consultation can become a token exercise (Walters and Nichols 2009). The WHS framework requires well-organised unions and workplaces, and employers who take their duties as a PCBU seriously. But this is frequently not the case. Regulators under the self-regulatory style laws have powers to issue sanctions and to prosecute for breaches of the ‘duty of care’ particularly where the duty is prescribed by a WHS regulation thus removing the ability of the employer to argue (legally with the regulator) that risk management can be tempered by what is ‘reasonably practicable’. However, some employers have been reluctant to take measures as per their duty of care as a PCBU, have used the self-regulated risk assessment process to delay action, and have refused to implement controls in the required hierarchy, as this invariably impacts on their operational costs. Effective WHS regulation must include prescriptive standards-based requirements, founded on science, as has been demonstrated by the COVID-19 pandemic to be far more effective, workable and acceptable. The same can be said of other high risk activities such as where the presence of asbestos or brucellosis exists, rides in amusement parks and other circumstances where mandatory regulations based on standards have been developed and adopted to eliminate the opportunity for risk assessment to undervalue the risk to workers’ health and safety. In addition to weak enforcement of current WHS law, the risk management approach, combined with a power imbalance between workers and the PCBU that is markedly skewed toward employer power to unilaterally decide WHS issues, also contributes to the ineffectiveness of the current WHS regime. In most cases in current workplaces no consultation exists because the ‘other agreed arrangements’ loophole allows the PCBU to weaken or have no health and safety representatives
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and health and safety committees operating to ‘advise’ the PCBU on the safest action to take on any identified hazard that exists in the workplace. With the ‘duty of care’ being qualified by concepts such as “as far as reasonably practicable”, an escape mechanism exists at law for a PCBUs to claim practical exemption from the regulators’ interpretation of that ‘duty of care’, even if a serious harm or fatality is a very real likelihood in the event of a highly communicable disease like COVID-19 For these reasons there is a growing body of evidence that self-regulation has failed9 and that the model is no longer effective or fit-for-purpose in circumstances where:
• The industrial relations system has marginalised worker participation in the workplace given that workforce participation is a core feature of the application and functionality of WHS law under the Robens model;
• Self-regulation has become synonymous with a deterioration in the provision of safety at all workplaces including where workers are required to work from home;
• New employment models such as labour hire have created a disconnect between the employer and the workplace, thus undermining the concept of participation and cooperation between the employer and workers on WHS matters;10 and
• WHS inspectorates have been deprived of resources to undertake the compliance and enforcement role, so necessary where workers rights are limited.
The Saturday newspaper of 23 May 2020 exposed a clear case where the Commonwealth itself is using the weak WHS laws to allow the ‘duty of care’ to be waived by a contractor supplying labour in the aged care industry. This arrangement which involves $5.8 million in Government funding is despite current WHS law that does not permit delegation of the duty to care for those in labour hire ‘undertakings’ to provide this duty to their employees and the host employer.11 The breakdown of work health and safety (WHS) systems and regulation in the maritime industry during the COVID-19 pandemic under the self-regulation model, exemplified by both the stevedoring and cruise ship case studies addressed in this submission where both the seafarer workforce (largely out of sight), the onshore port workforce and the community were unnecessarily exposed to the COVID-19 disease through both regulatory and employer failure, highlights the need for fundamental reform of Australian WHS law. In the maritime sector, the weaknesses in WHS law are exacerbated by a complex and overlapping web of international and domestic laws, including the operation of Federal biosecurity law and State
9 See for example the Coroners Court of Queensland, Inquest into the deaths of Kate Goodchild,
Luke Dorsett, Cindy Low & Roozbeh Araghi at Dreamworld, October 2016: Findings and Recommendations, February 2020 where at Paras 799-826 the changes to regulation, including establishment of a Safety Case Regime was established to replace the Qld WHS self-regulation model. At Para 1052 The Coroner notes that “The requirement for a safety management system certainly appears to be a far more comprehensive and integrated approach to ensuring the effective management and control of risks with respect to amusement devices. It is undoubtedly a significant move away from the current self-regulatory nature of the industry. Given the circumstances of this tragic incident, it is without question that more direct oversight and regular auditing of the maintenance and inspection of amusement devices within the Theme Park industry is necessary.”, https://www.courts.qld.gov.au/__data/assets/pdf_file/0004/641830/10545784-final-dreamworld-draft-6-for-upload.pdf 10 See for example Hepworth, Dr Katie, Australasian Centre for Corporate Responsibility (ACCR), Labour Hire & Contracting Across the ASX100, 12 May 2020, https://www.accr.org.au/downloads/20200512_accr_labour_hire_contracting_across_the_asx100.pdf 11 The Saturday, Exclusive: Gov’s $5.8m aged-care app offers ‘no duty of care’ 23 May 2020 https://www.thesaturdaypaper.com.au/edition/2020/05/23
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public health law that has allowed the employer far too much latitude in applying a risk assessment based approach. The WHS regulators appear to have retreated. The seafarer workforce could have far more confidence in a standards-based approach that prescribed the controls to apply in the context of a communicable disease. Lessons need to be learned and applied more widely across the WHS system in Australia. Principles and methodology underpinning current Australian WHS law needs an overhaul to meet the current and any future crisis that is catastrophic to workplace health and safety. The public health standards developed recently, based on scientifically determined measures or controls need to be consistently applied across public and private sector workplaces. A new WHS pandemic regulation needs to be implemented to ensure clarity about how to effectively implement the hierarchy of controls during a global pandemic.12 The ACTU has called for legislated requirements for:
• Paid pandemic leave for all workers who have reason to believe that they might have contracted COVID-19.
• A legal obligation on employers to protect their workers and their customers by implementing the highest practical standards and controls for their work, such as physical distancing, to prevent workers from being infected and stop the virus from spreading.
• Compulsory notification to local health authorities and work health and safety regulators in all states and territories of any cases of COVID-19 infection that may have been the result of work.13
Recommendation 2: Recognise that workplaces are sites of particular risk for COVID transmission, as sites of large and ongoing congregation of people who are usually not free to be able to follow public health advice without the consent of their employer. For many employers, following public health advice will increase their operational costs, which means that many employers have been reluctant to follow public health advice and/or have penalised workers and Health and Safety Representatives who have attempted to implement such measures. Recommendation 3: That clearer mandatory WHS standards must be implemented, and WHS Acts amended to give more rights to workers, Health and Safety Representatives, and unions to compel changes to systems of work to ensure safety. The current test for workers’ rights to cease work (‘imminent or immediate exposure to a hazard’) must be strengthened as it has not worked during the pandemic. The current WHS framework is not strong enough to force reluctant employers to act without workers being penalised in the process as it does not account for the current imbalance of power between employers and workers. This imbalance will worsen as the economic crisis worsens and many workers face the threat of job losses. Recommendation 4: A new regulation should be put in place under the WHS Act that is triggered in case of a pandemic being declared. The regulation should make clear how the concept of the hierarchy of controls of risk is to be applied to manage the risk of infectious disease in the workplace. This should include:
• Compulsory notification of the employer, regulator, health and safety committee and union of any case of the disease in the workplace.
• Full involvement of the health and safety committee and union in the identification of close contacts that must be isolated and tested, including contacts made during the 48 hours prior to symptoms developing.
12 Australian Congress of Trade Unions, WHS Pandemic Leave Policy Brief (May 2020), 13 ACTU, Media Release, Pandemic leave, WHS reforms needed before workers can return, 5 May 2020,
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• All close contacts to be isolated for 14 days on pay.
• Systems of work to be redesigned to allow for physical distancing (between shifts of workers, different groups of workers, in the use of shared machinery and during break times), increased cleaning in workplaces, and access to hygiene facilities and proper PPE.
• In case of a positive test, workplace to fully shut for to allow for deep cleaning to the standards of Australian Health Protection Principal Committee. All workers should be tested and receive their test results before returning to work.
Recommendation 5: Amend the National Employment Standards in the Fair Work Act 2009 to provide paid pandemic leave for any worker while they are waiting for test results or isolating, or in need of rehabilitation. Workers at higher medical risk must also be able to access additional paid leave on medical advice. Recommendation 6: Roll back all anti-union and anti-worker legislation in recognition of the key role played by unions in addressing the spread of COVID-19 in workplaces and in the community. Recommendation 7: That the Australian Government conduct an independent inquiry into:
• The deficiencies in WHS processes and in the application of COVID-19 public health advice in workplace settings that allowed COVID-19 to spread and cause outbreaks in a number of workplaces.
• The efficacy and interaction of the COVID-19 public health advice and WHS law in Australia, and in particular whether the scientifically determined standards-based foundation of health advices is a suitable model for application to all hazards across all WHS law in Australia.
• The reasons why WHS regulators exhibited a lack of initiative in enforcing public health law and WHS law in the workplace during the COVID-19 pandemic.
• How the WHS framework must be changed to ensure future workplace outbreaks are prevented.
• Ways to ensure that the application of the Federal Biosecurity Act 2015 and State/Territory public health laws do not impede the operation of WHS laws or regulators for certain groups of workers – particularly workers on international ships in Australian ports.
Fatigue and stress for workers travelling interstate for work
Many maritime and resource industry workforces are drawn from across Australia, requiring workers to regularly cross state borders to go to work. This is true for many seafarers on cargo vessels, as well as workers in the oil and gas industry (both seafarers and production workers). The border restrictions imposed by WA, SA and NT and Queensland on 24 and 25 March had an enormous impact on these workers. At the same time as the pandemic was intensifying in early March, the oil price had plunged due to geopolitical tensions, and in early April it fell even further as reduced demand due to COVID-19 lockdowns lead to global oversupply.14 These two events have led to an unprecedented upheaval in the rosters for work swing and leave time for seafarers, offshore oil and gas workers, and other FIFO workers in the resources industry. Companies also brought in measures to prevent a COVID-19 outbreak offshore.
14 Angela Macdonald-Smith, Survival of the fittest in oil price war, Australian Financial Review, 9 April.
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Employers had very different approaches in how they managed their workforce and responded to the situation. Where union agreements were in place, the MUA was largely able to negotiate outcomes with employers that ensured that the workforce was consulted and had adequate notice of changes expected of them. However, the oil production workforce, very few of which are covered by union agreements were subjected to an extraordinary level of change, chaos, uncertainty and stress (described further in Annex A, noting that the Offshore Alliance is now organising and representing many of these workers as they seek their first union agreements). The situation was clarified somewhat on 9 April 2020, with a determination from National Cabinet that maritime and offshore crew were exempt from travel restrictions (although they were required to quarantine for 14 days on entry of the affected states). In the intervening period, many workers were compelled to move interstate, and told to expect to remain there for 3-6 months. Many workers who found themselves unable to continue to work in the new conditions abruptly presented to them were sacked. Some workers have been reinstated after union efforts including filing for unfair dismissal, but those without union representation have been left unemployed. The introduction of the 14-day quarantine lead to a struggle over who would pay for it. Initially, many companies sought to leave workers unpaid during their quarantine period, or compelled workers to use their leave. For most of the companies employing seafarers, a negotiated outcome on new rosters was reached: 6 weeks on, 4 weeks off, and then 2 weeks isolation. Approximately 20 companies employing seafarers in the offshore oil and gas industry agreed to this roster with the MUA. Only one company operating two vessels (Toll Offshore) has refused to pay workers for their quarantine period. Many oil and gas production workers without the protection of a union agreement were subjected to a much worse roster: 4 weeks on, 2 weeks off, and 2 weeks leave. Woodside attempted to introduce a roster that would have required workers to work for 14 weeks with 4 weeks off. Inpex demanded that all workers move to WA with only days or sometimes hours of notice. The upheaval was so great that NOPSEMA stepped in and issued a Safety Notice15 advising employers that they had to consult with the workforce and consider the question of fatigue when changing rosters. The MUA is very concerned that the oil and gas industry will seek to retain the new work rosters introduced during the COVID-19 pandemic as a cost-mitigation and cost-cutting measure. Our concerns are heightened by the fact that FIFO iron ore miners in WA are returning to their normal work rosters in June. There has been little indication that the oil and gas industry will follow suit. It is notable that unlike the price of oil and gas, the price of iron ore has jumped during the pandemic, with total export revenue projected to reach a record $100 billion.16 Recommendation 8: Where new swing and leave arrangements adopted during the COVID-19 border restrictions have increased stress and fatigue, WHS regulators should assist workers and unions in ensuring that all employers return to normal rosters as soon as border restrictions are lifted. Risks of COVID-19 should instead be managed through testing, physical distancing, and hygiene measures. Recommendation 9: Individual workers required to spend time in isolation in order to carry out their work must be paid for this time.
15 NOPSEMA, COVID-19 ROSTER CHANGES, 7 April 2020. 16 Brad Thompson, Iron ore's $100 billion surge a remedy for COVID-19, Australian Financial Review, 9 June 2020.
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Recommendation 10: Measures should be put in place to facilitate making enterprise agreements with unions to cover workplaces where no agreement exists, as having a union agreement in place has significantly benefited workers dealing with the turmoil of COVID-19 travel and health restrictions.
Improving JobKeeper
The economic crisis has had a significant effect in the stevedoring industry and in the oil and gas industry. Two large bulk and general stevedoring companies and their workforce are currently in receipt of JobKeeper payments: Linx and Qube. The MUA represents the workforce at Linx port facilities across Australia covering approximately 400 workers, and at 19 Qube ports across Australia, covering an estimated 1500 workers. Both companies also have significant inland logistics operations but we are not aware of whether these logistics workers are also receiving JobKeeper. Four companies employing seafarers in the offshore oil and gas industry are receiving JobKeeper payments, covering an estimated 120 MUA members (there may be more workers who are officers and engineers receiving payments). Many companies employing workers on oil and gas production platforms are also in receipt of JobKeeper payments. The JobKeeper payments have had the benefit of keeping a significant numbers of workers in employment. However, there have been attempts by some companies to use the payments mainly to maximise their own financial results, at the expense of their workforce. Within days of announcing they were applying for JobKeeper, Qube also announced a share issue to raise capital, with the intention that this money could be used to acquire other logistics companies in financial difficulty.17 Qube is also implementing JobKeeper payments in such a way that many workers will be required to pay some of their JobKeeper payments back over time. Our view is that this is clearly not in the intent of the scheme, and to the detriment of the workforce. Qube’s implementation of Jobkeeper is being challenged in the Fair Work Commission, and the union has signed a memorandum with stevedoring company Linx (which has a similar employment structure) to ensure that they do not attempt to implement JobKeeper in this way. Qube has also now threatened to make some workers redundant. Employers should not be able to make redundancies while they are receiving JobKeeper payments. The maritime industry has longstanding and complex EAs that are designed to deal with peaks and troughs in work as equitably as possible, while maintaining employment for the maximum number of workers. The ‘JobKeeper Enabling Directions’ cut across these provisions by allowing companies to stand down workers, change days of work, reduce their hours, change their duties, and change their location of work. These measures are allowed to override EA provisions and very little consultation is required before implementing them. The MUA was able to work with most employers to ensure that these directions were not used, but we continue to be concerned that they could be used to undermine existing flexibility provisions that have been agreed and successfully implemented over many years.
17 Jenny Wiggins, Qube raises $500m to mop up COVID-19 victims, Australian Financial Review, 27 April 2020.
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In addition, companies can request that workers’ use their leave while in receipt of JobKeeper payments, and that this request must not be unreasonably refused by employee. This effectively allows the company to use public funds to reduce a corporate liability, and the worker is left worse off. TT Line, which provides shipping services across the Bass Strait, is a Government Business Enterprise owned by the Tasmanian government, which meant the company and its workforce were not eligible for JobKeeper payments. As private companies, their competitors Toll and SeaRoad were eligible for payments. In order to preserve jobs during the downturn, the MUA and TTLine agreed to change rosters so workers worked two weeks on and six weeks off. Hours of work were reduced but other employment conditions were retained. There were no loss of jobs, and the Deed covering the change contains a commitment to increase hours once traffic increases. Recommendation 11: Jobkeeper should be extended until the end of 2020, and expanded to cover all employers and their workforce, including:
• All workers with a reasonable expectation of ongoing employment as at March 1.
• Workers on visas
• Workers employed by Government Business Enterprises, local government, and at universities
• Workers employed by companies owned by sovereign entities (such as Dnata) Recommendation 12: Employers should not be able to make redundancies while receiving JobKeeper subsidies, as is currently the case. Recommendation 13: Measures must be taken to ensure employees receive the whole of the JobKeeper subsidy during the allocated time period, and employers cannot require employees to pay back any portion of the subsidy either in wages or in hours worked at a later date. Recommendation 14: The ‘JobKeeper enabling directions’ should not be able to override union agreements, and should be removed. The request that employers can make to have workers use annual leave while receiving JobKeeper payments should also be removed.
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Shipping and supply chain resilience
Ships and the ports they use are a critical component of the supply chains that support other wealth generating industries. Ships are critical to the import and export supply chains for all facets of manufacturing, resources and energy including refined petroleum products, agriculture, aquaculture, fishing, tourism (including the growing marine tourism and cruise sectors), wholesale and retail distribution, and construction. Key manufacturing industries such as steel (requiring iron ore and coal), aluminium (requiring bauxite and alumina), petroleum (requiring crude oils and condensates), chemical and explosives production (requiring ammonium nitrate, acids etc), building products (requiring gypsum, mineral sands etc); food processing (requiring sugar, salt, food concentrates), as well as agricultural production (requiring fertiliser, fuels, grain seeds) and offshore extractive industries such as oil and gas, are reliant on ships for supply of key bulk commodity inputs and distribution of outputs, for their efficient operation. Bulk commodity ships and other trading ships used in these supply chains create demand for a range of other marine services including towage, pilotage, bunkering, waste removal, provisioning, firefighting, salvage and marine rescue as well as requiring port services and stevedoring services. During the COVID-19 pandemic international ships continued to transport vital supplies to Australia including medical equipment, medicines, consumer staples and fuel needed to maintain the critical sectors of the economy and to provide household needs that were required during the restrictions and to support the health system. Ships also maintained the flow of key export commodities to overseas customers, thus maintaining the flow of revenue into the economy, including tax revenue to government. Similarly, ships that perform vital supply and support roles to offshore oil and gas production platforms continued to perform those supply and support functions, notwithstanding some seafarer crew change difficulties imposed by Australian Border Force advice on Restrictions on Commercial Maritime Vessels and Crew: Travel restriction for all non-Australian citizens and non-residents that are addressed elsewhere in this submission. Dockworkers continued to load and unload ships at ports across the nation. While costs increased to wholesalers, retailers and consumers for some products for which demand increased during the pandemic, this cost increase did not arise from freight cost increases and no bottlenecks arose in the shipping and ports component of supply chains. They continued to function efficiently and productively. That efficiency and productivity was delivered by the workforce on ships and in the ports, who continued to perform their roles notwithstanding the risks to their health and the imposition of work health and safety risk controls like social distancing that are sometimes difficult to maintain in the confines of ships as workplaces and in certain spaces within ports, necessitating appropriate involvement of the workforce to ensure functional outcomes.
Commonwealth-State/NT coordination of shipping and ports requires review
All sections of the industry worked cooperatively and constructively, including the workforce and their trade unions in supply chains involving land, water and air transportation, to keep ports and supply chains functioning during the COVID-19 pandemic. Australia drew heavily for guidance on protocols developed by the ILO, IMO and World Health Organisation (WHO), prepared in
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consultation with the ITF and International Chamber of Shipping (ICS).18 We submit that there needs to be a nationally coordinated framework established by government to ensure there is an inclusive stakeholder coordination process established, and on permanent standby, that considers and provides guidance on matters such as:
• A consistent approach to the health protections and protocols for workers in essential maritime services such as ports and port services, and ships, including cargo ships, offshore oil and gas ships, passenger ferries, harbour towage, pilotage, mooring ships, bunkering ships and cruise ships, based on the best available advice from the ILO, IMO and WHO, supported by Australian experience gained during the pandemic.
• A consistent approach to operator responsibilities in the event that one or more workers in a port or shipping workplace contracts a communicable disease, that address worker health and safety (e.g. procedures for shift and crew changes) and equipment/workplace clean-ups and safety to ensure that maritime workplaces are safe for remaining and replacement workers.
• A template ports and shipping assistance package, based on the key worker status of port and shipping workforces, that supports port and ship operators who experience a business downturn due to lower volumes of throughput being handled through Australian ports and who are incurring additional costs to keep workforces and workplaces safe, and such workforces in employment, so that the port gateways can continue to ensure the nation is supplied with essential goods such as food, fuel and medical supplies; and
• A strengthening of Commonwealth and state/NT regulatory and taxation/fees and charges arrangements to ensure that Australian businesses and their workforces are given full support and protection so that they are in a sound position to help deliver a stronger ports and shipping sector when a recovery from a disruptive event like the COVID-19 pandemic emerges.
It is important that we learn from adversity what works bests in the interests of the nation and to ensure we take advantage of those experiences in the years ahead. It is clear to the MUA since the COVID-19 crises erupted, based on our dealings with employers, port operators, regulators and industry organisations, that there is a disconnect between the national economic interest where the Commonwealth has key responsibility and the management/regulation of supply chains, especially the ports’ role as gateway in those supply chains, which are a state responsibility. Meanwhile, shipping falls into both jurisdictions – interstate shipping being a Commonwealth regulatory function and intrastate shipping a state/NT responsibility. This disconnect needs to be patched so there are appropriate protocols in place to address a future disruptive event impacting on the nation’s international and domestic transport supply chains. We think that the Transport and Infrastructure Council should establish a standing committee that involves representatives of industry stakeholders and trade unions representing the workforce, including WHS expertise, to address these policy, procedural and coordination issues. We welcome establishment of the Maritime Response Group (MRG) by the Department of Infrastructure, Transport, Regional Development and Communications, but we consider its agenda is too narrow and not all stakeholders are involved. The MRG could nevertheless be the embryo of the arrangement we have in mind.
18 See for example, the ILO/IMO COVID-19 and Maritime Labour Issues: Impact and Responses, which lists COVID-19 protocols and resources available to the industry, https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/genericdocument/wcms_746994.pdf and the IMO web page Coronavirus disease (COVID-19) Pandemic, http://www.imo.org/en/MediaCentre/HotTopics/Pages/Coronavirus.aspx and WHO, Operational considerations for managing COVID-19 cases or outbreaks on board ships Interim guidance, 25 March 2020, file:///C:/Users/Rod%20Pickette/Downloads/WHO-2019-nCoV-Ships-2020.2-eng.pdf
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The sovereignty issue – addressing weaknesses in Australian supply chains
Notwithstanding the cooperation of the stakeholders that kept supply chains functioning, from a wider supply chain standpoint, the COVID-19 pandemic has revealed critical risks in Australia’s supply chains that arises from the nation’s almost complete dependency on the use of foreign ships, not only in international inbound and outbound trade, but in domestic coastal trade. Critical vulnerabilities in the nation’s supply chains were highlighted in a leaked Defence Department report from 2019 that revealed essential services would break down within months in a major crisis.19 The MUA has been arguing for some years that unless there are actions taken to address these risks, a future military conflict, natural disaster, economic crisis or pandemic that cuts seaborne trade will result in catastrophic consequences for the economy. The MUA has also advocated solutions that would make the country more resilient to a crisis, such as creating domestic stockpiles of fuel and other essential products, increasing local manufacturing capacity, and creating a strategic fleet of Australian-owned vessels to carry essential goods. The union urges the Senate to ensure the public release of the full report, commissioned by the Defence Department and produced by Engineers Australia. A continuation of the Temporary Licencing (TL) system as provided in the Coastal Trading (Revitalising Australian Shipping) Act 2012 (CT Act) and as administered by officers in the Department of Infrastructure, Transport, Regional Development and Communications (as the Minister’s delegate) that permits the unfettered and unregulated use of foreign ships in Australian coastal trade is the antithesis of a functional system of human biosecurity. Firstly, there are no quality assurance requirements on TL applicants, nor any background checks before they are issued with a TL to operate ships in Australia’s coasting trade. Multiple entities can apply for a licence – a shipowner, a ship charterer, a ship’s master, an agent of a vessel; or a shipper (cargo interest). TL applicants are not required to adhere to any standards of performance to be a TL holder. Furthermore, a TL holder can hold a licence for up to 12 months and through the flimsiness of due diligence processes can obtain authorisations for multiple voyages under that TL. There is no requirement on the TL holder to nominate the ship to be used for a voyage, in advance, so it can be vetted (and every voyage can use a different ship, obtained at short notice on the international spot market. In fact that is the norm adopted by TL holders to avoid the payment to crew of a special Award wage scale [slightly above the international benchmark set by International Transport Workers Federation collective agreement rates] that applies only to the third and subsequent voyage). Second, there is only minimalist checking of the foreign crew engaged by the chartered TL ship, and what checking is undertaken through the application process for a Maritime Crew Visa (MCV) that can be obtained online by the applicant seafarer. The MCV is a transit visa designed for seafarers on international ships that are only in a port for short periods during loading and unloading operations as part of an international voyage. Yet the CT Act exempts the transit aspects of the MCV and allows it to be used as an ongoing work visa, but without any of the checks and balances of a genuine work
19 ABC 7.30 Report, 28 April 2020, Confidential report predicted how long it would take for essential services to break down during a major crisis, https://www.abc.net.au/7.30/confidential-report-predicted-how-long-it-would/12195072
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visa. Up to 300,000 different foreign seafarers from across many nations have been employed on the 17,000 plus TL voyages undertaken since the CT Act commenced on 1 July 2012. No checks whatsoever are undertaken on their qualifications, their immunisation record or health status. The large number of foreign ships using hundreds of foreign seafarers that are granted a TL under the CT Act, and which enter a multitude of Australian ports and who interact by necessity with Australian port workers, creates an infectious disease transmission risk that should not be tolerated. The foreign ship dependency encouraged by the CT Act, and its administration by the Government, creates a major biosecurity risk to Australia. It is time for a review of the CT Act. Transitioning away from foreign ship dependency, where it is most notable in trades such as refined petroleum products (RPP) which is 100 per cent dependant on foreign ships crewed by foreign seafarers - in both the nation’s imports of RPP but also in the distribution of RPP from import storage centres and from Australia’s remaining four refineries to ports around Australia - must be a high national strategic priority. There is not one Australian RPP ship on the Australian General Shipping Register i.e. not one RPP tanker flying the Australian flag. This situation exists notwithstanding that:
• At any point in time, there are around 45 oil tankers sailing for Australian ports and approximately 90 petroleum tankers arriving in Australia each month;
• Australia derives around 90% of its fuel requirements from imports;
• Analysis of published data on ships issued with Temporary License under the Coastal Trading (Revitalising Australian Shipping) Act 2012 (CT Act) reveals that there is sufficient domestic cargo volume to commercially sustain at least 3 domestic RPP tankers in interstate coastal trade; and
• Australia does not comply with the oil stockholding guidelines of the International Energy Agency (IEA) that requires a 90-day obligation based on the previous year's imports. In November 2018, Australia had 53 days of stocks.
But that foreign ship dependency is not confined to the RPP trade. In Australia’s coastal bauxite trade, 100 per cent is transported in foreign ships, though about 33 per cent of that trade is undertaken on foreign ships that utilise Australian crew. Similarly, nearly 100 per cent of Australia’s alumina trade feeding domestic aluminium smelters is transported in foreign ships. Australia’s iron ore trade servicing its domestic steel works is transported in foreign ships, as is most construction materials like cement, potash and gypsum. All domestic sugar is transported in foreign ships. Any future disruptive event such as another pandemic or a geopolitical conflict that impedes foreign ship availability could impact severely on supply chain resilience and capability and quickly bring the economy to a standstill, including civilian food, manufacturing, RPP and other production, health sector supplies, household essentials and Defence capability.
Establishing a national strategic fleet and restoring a balanced cabotage regime
Maritime industry leaders like Maritime Industry Australia Ltd (MIAL) and Ports Australia20, economic, national security and Defence policy experts and opinion leaders now recognise the important role that Australian ships need to play in building supply chain resilience, in energy
20 Ports Australia, Ports Australia Welcomes Action On Australian Shipping And Maritime Skills, 7 May 2019, https://www.portsaustralia.com.au/blog/ports-australia-welcomes-action-on-australian-shipping-and-maritime-skills
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security, in border security and for better integration of merchant or commercial shipping to meet the Defence Force’s maritime requirements. The policy solution that is now under consideration is development of a national strategic shipping fleet. The proposal to establish a national strategic fleet in Australia has been gaining momentum since it was first advocated by MIAL in 2016 when legislation regarding the regulation of coastal shipping was being considered by the Federal Parliament.21 Over the following three to four years the proposal for a national strategic fleet has achieved considerable bi-partisan political support and has attracted policy attention in national security circles and in consideration of policy to address Australia’s fuel security. It has been and remains under consideration in Government and Parliamentary Inquires.22 There are very real threats to Australia’s economic security, sovereignty and border security if urgent and positive steps are not taken to stem the decline of Australian shipping and maritime industries and to commit to rebuild Australian shipping. The establishment of a national strategic fleet is the most immediate requirement to address the supply chain sovereignty issue. In the absence of a coordinated policy response, the key threats to the nation are:
• That Australia will lose its entire merchant trading fleet, increasing its dependency on foreign-owned and controlled ships for supply of fuels for Defence, industry and citizens; for the export of mining resources and primary agricultural outputs that sustain the Australian economy; and for importation of inputs to production and finished goods. A single disruption to foreign ship supply in the event of a conflict in the Asia Pacific region or another pandemic that crippled international ship availability would have immediate and catastrophic consequences for the Australian economy;
• That the downward spiral in the number of Australian trading ships operating under medium to long term contracts of affreightment (COA) to service the manufacturing and agricultural industries, with a consequential increase in reliance on the spot shipping market, means Australia will lose complete control of ship scheduling and opportunities to create efficiencies in coastal trading through the use of a balanced mix of Australian ships with a General License and foreign ships with a Temporary Licence as was intended by the CT Act when introduced in 2012, that creates opportunities to smooth out freight rates and utilise triangulation and cargo aggregation to reduce ballast legs, which keeps freight rates lower;
• That the maritime skills base will reach unsustainable levels. Maritime skills are necessary for a maritime dependant island nation with a strong demand for maritime skills in shipping related services like towage, pilotage, mooring, bunkering and harbourmaster; and in onshore roles in ship regulation, safety, training, freight forwarding, marine insurance, marine chartering, ship financing etc; along with the capacity to support Navy alternative crewing models, essential for merchant navy support for the Defence Forces;
• Mainstreaming the use of non-national seafarers in routine coastal trading, who enter and remain indefinitely in Australia under a Maritime Crew Visa that can be secured online in
21 Maritime Industry Australia Ltd (MIAL) Coastal Trading Green Paper: A Maritime Transition of 2016 which proposed the creation of a national strategic shipping fleet, defined as ships that offer strategic national interest benefits to the nation 22 For example, Bateman Sam, Australian Strategic Policy Institute, Does Australia need a merchant shipping fleet?, March 2020; the Senate Rural and Regional Affairs and Transport References Committee Inquiry into the policy, regulatory, taxation, administrative and funding priorities for Australian shipping, due for report in June 2020; the MUA report Putting the ‘Justice’ in ‘Just Transition’ Tackling inequality in the new renewable economy, November 2019; and the MUA report prepared by John Francis, Australia’s Fuel Security: Running on Empty, November 2018
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less than 24 hours and which contains none of the checks and balances of a typical work visa creates a grave maritime security risk and is the largest single threat to Australia’s border protection regime;
• That Australia’s greenhouse gas and particulate emissions targets will be more difficult to achieve if it loses control of the regulation of all coastal trading ships as will be the case if the entire merchant fleet is destroyed and replaced with foreign ships, invariably flag of convenience (FOC) ships operating from registries that have considerably less regard for environmental standards; and
• That Australia’s ability to protect its coastal, ocean and marine environments will be diminished in the event that all coastal trading is undertaken by foreign ships, whose registries do not adopt the same standards of ship and crew skills and qualifications to ensure that those ships meet Australia’s stricter marine pollution standards.
The MUA has proposed that national strategic fleet ships be defined (in the CT Act) as ships which are of national strategic importance to the nation, and provide a social and or community service benefit to the nation and would include:
• A core fleet of clean petroleum product tankers (liquid bulk ships) involved in domestic and international supply chains and providing national fuel security;
• A core fleet of dry bulk commodity ships necessary to service Australian heavy manufacturing industry;
• A core fleet of ships capable of transporting containerised cargo, essentially coastal feeder ships to service hubs ports;
• A core fleet of multi-purpose ships to deliver machinery and other non-standard cargoes required in particular for the agricultural and mining industries: ➢ Some of these ships are necessary to service regional and remote ports/communities
and by necessity have a community service obligation (CSO);
• Emergency towage vessels (ETVs - marine rescue and salvage ships) operated by AMSA;
• Emergency response ships e.g. the Aurora Australis (if transitioned to an emergency response role when it completes its Antarctic duty).
• Research, supply and oceanographic ships such as those operated by or chartered to the CSIRO, the Australian Antarctic Division of the Department of Environment and Energy, and marine authorities such as the Great Barrier Reef Marine Park Authority;
• Border Force ships;
• Certain Defence/Navy ships such as auxiliary fleet ships (particularly non-combat ships such as Navy training ships, Auxiliary Oiler Replenishment (AOR) ships, supply ships etc.);
• Training ships such as those operated by the Australian Maritime College (AMC); and
• Offshore wind installation and maintenance ships: ➢ Offshore wind turbine installation and maintenance ships are included because of their
strategic significance in developing and maintaining Australia’s renewable energy resources required to meet Australia’s greenhouse gas emissions target. These ships are in limited supply internationally, and only a small proportion are equipped to build the large turbines further offshore that are proposed for Australia. They are purpose-built ships with more deck space than a typical offshore oil and gas support ship, they cope with more severe weather and as a result can reduce overall installation durations. They require support to ensure that Australia can access the limited global supply of these specialist ships for offshore wind turbine installation.
Under the MUAs conception of a national strategic fleet, the ships that fall under the definition (with the exception of those providing a public/community service such as emergency towage vessels, research, supply and oceanographic ships, Australian Border Force ships and certain Defence/Navy ships) would trade commercially for the majority of the time, so the distinguishing feature of such
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ships is that they can be called upon by government in times of emergency to undertake functions that keep supply chains functional and secure. In return for the capacity of government to call upon such ships in times of emergency, governments would provide industry policy support for such ships, which could take the form of taxation incentives, training support, priority berthing slot access to trading ports, and or discounts on fees and charges e.g. those levied by the Australian Maritime Safety Authority (AMSA). In parallel with establishment of a national strategic fleet, urgent reform of CT Act is required to restore balance in the coastal trading licencing regime to preference Australian ships with Australian crews in core trades. Utilisation of Australian ships that use a consistent core complement of Australian crews who can be subject to close health monitoring, tracking and tracing, and who can be trained in all the best practice COVID-19 control measures, is an essential and urgent post COVID-19 requirement, to ensure supply chain integrity and continuity. A crew health monitoring protocol could be a condition of registration on the Australian General Shipping Register (AGSR) requiring that ships and crews meet stringent infectious disease control requirements, that could be monitored by AMSA as part of its Flag State Control (FSC) responsibilities. A number of modest amendments to the CT Act, which could readily attract bi-partisan support could be quickly enacted to restore a balanced and functional cabotage regime in Australian coastal shipping, enhance the resilience of the supply chain and ensure that infectious disease transmission opportunities from foreign seafarers through Australian ports is minimised, thereby significantly strengthening Australia’s human biosecurity arrangements. The amendments to the CT Act that are required are:
• An amendment to the Object clause in the CT Act that removes current ambiguity as found by the Federal Court (see for example the Judgement in the Full Federal Court CSL Australia Pty Limited v Minister for Infrastructure and Transport [2014] FCAFC 10 26 February 2014) and which clarifies that the primary Object of the CT Act is to maintain and increase the use of Australian ships in coastal trade.
• An amendment to remove those subsections of the Object clause that have provided the Minister (or Minister’s Delegate) with the opportunity to take into consideration freight rates when deciding an application in accordance with s34(2)(f) of the CT Act, and to replace a freight rate consideration with a trade volume consideration.
• A restructure of Division 2 Temporary Licenses of Part 4 of the CT Act so that the procedure for the issue of TLs is based on commercial negotiations, not on decision making by Departmental officials as the Minister’s Delegate. The primacy of the role of shippers (cargo interests) is replaced by a primacy on the role of ship providers, particularly GL and modified general licence (MGL) holders.
• Establishing a nomination process for General Licence (GL) holders to indicate the voyages, cargoes or routes that they wish to contest, aimed at reserving for GL ships, national interest trades e.g. the expedition cruise sector.
• There be provision for a new licence type (in addition to a GL and a TL) for foreign registered ships operating under a demise charter with full Australian crews (similar in some respects to the former Transitional General Licence – TGL); designated as a modified general licence (MGL).
• That separate licencing provisions for large cruise ships be introduced requiring a repeal of the Ministerial exemption for large cruise ships and adoption of a more flexible licensing system to meet the commercial arrangements for the large cruise sector that incentivises
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these cruise ships that wish to home port in Australia, as well as those including multiple Australian port visits in their itineraries, to become registered as GL or MGL ships: ➢ Incentives could be complemented by conditionality around meeting biosecurity
standards, including appropriate health assessments, seafarer labour and WHS standards, compliance with the laws giving effect to ILO and IMO Conventions and appropriate seafarer representation rights in return for exclusive access to the Australian cruise market.
• All licences be issued to the ship, not the applicant as at present (currently supported in the case of TLs by multiple voyage authorisation of ships where there is scope to game the system), and it is proposed there be no minimum or maximum voyage requirements.
• There be provision for commercial arbitration to help facilitate fair commercial outcomes; and
• There be a procedure for establishing price reviews/price monitoring by the Australian Competition and Consumer Commission (ACCC) or another body to eliminate price gouging in ship trades where there is only one ship supplier.
• A strengthening the licencing procedure for General Licenses (GL), including that GL ships and crews meet stringent infectious disease control requirements, to be monitored by the Australian Maritime Safety Authority as part of its Flag State Control (FSC) responsibilities.
Public investment in ships
A number of options are available for initial investment in strategic fleet ships that will operate commercially, such as refined petroleum product (RPP) tankers. One option is for the Commonwealth Government to provide an initial investment (for example a capital grant as part of an industry policy package) and own or charter the ships, leasing them to shippers (cargo owners) and or ship operators to recoup that investment over time. Another option is for the Commonwealth Government to underwrite the operating cost differential between a foreign registered and an Australian registered ship, at least until the trade is well established and profitability is established. Alternatively, the Commonwealth could establish a Government Business Enterprise (GBE) under the Public Governance, Performance and Accountability Act 2013 to purchase/charter and lease commercial ships under the Strategic Fleet. Whatever transpires as the most suitable financing and funding option, the Commonwealth will be required to commit public resources to the strategic fleet. Public ownership or a public stakeholding in commercial shipping operations in not new in Australia. The Commonwealth previously owned Australian National Line (ANL), it established the Australian River Company Ltd which owned coastal bauxite ships for a period of time, the WA Government has previously operated State Ships and the Qld Government is considering an investment (possibly as a co-investment) in a new Qld coastal shipping venture, aimed at building supply chain resilience in Qld coastal trade where other transport modes often face disruption due to floods and other weather events. The Commonwealth also leases ships to perform a range of non-commercial Government functions such as emergency towage and marine rescue (e.g. the Coral Knight based in Cairns and operated by AMSA), research, supply and oceanographic ships such as those operated by or chartered to the CSIRO, the Australian Antarctic Division of the Department of Environment and Energy for example the Aurora Australis, and marine authorities such as the Great Barrier Reef Marine Park Authority. The Government also operates Australian Border Force ships. All these examples demonstrate a commitment of public finance to essential government functions. It is our view that reducing sovereign risk in supply chains through the development and
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maintenance of a national strategic fleet in critical links in the supply chain, such as transportation capability in RPP is a legitimate and essential basis for allocation of public funds. We are also advocating for additional public funding for emergency towage and marine rescue (a second ETV to service the offshore energy sector) and for the establishment and maintenance of a marine emergency response capability to be available in times of national emergency such as was required during the 2019/2020 bushfire season. We are proposing that the Commonwealth purchase three eminently suitable emergency response ships that are already, or about to become available, that could form part of the national strategic fleet for emergency response and for other purposes such as seafarer training and charter for commercial coastal trading when not required for emergency response duties. These are:
• The Aurora Australis, a ship with considerable emergency response capability, when it completes its final mission under charter to the Australian Antarctic Division (AAD) sometime in 2020 to be replaced by the RSV Nuyina, which is under construction under a Federal contract and is due for completion later in 2020. The Aurora Australis has previously been chartered to the Navy for humanitarian missions; and
• Two ocean going RO-RO cargo ships owned by Toll Marine which were previously used in the Bass Strait trade (replaced with new-builds in 2019), and are now laid-up awaiting a buyer.
Recommendations
Recommendation 15: Acknowledge that the COVID-19 pandemic has highlighted the importance of supply chain resilience and that ships and the ports they use are a critical component of the supply chains necessary to build and maintain supply chain resilience. Recommendation 16: Recommend that the Transport and Infrastructure Council establish a standing committee that involves representatives of industry stakeholders and trade unions representing the workforce, including WHS expertise to address ways to improve Commonwealth and State/NT coordination of supply chain functionality in pandemic or other emergency situations that considers and provides guidance on matters such as:
• A consistent approach to the health protections and protocols for workers in essential maritime services such as ports and port services, and ships, including cargo ships, offshore oil and gas ships, passenger ferries, harbour towage, pilotage, mooring ships, bunkering ships and cruise ships, based on the best available advice from the ILO, IMO and WHO, supported by Australian experience gained during the pandemic.
• A consistent approach to operator responsibilities in the event that one or more workers in a port or shipping workplace contracts a communicable disease, that address worker health and safety (e.g. procedures for shift and crew changes) and equipment/workplace clean-ups and safety to ensure that maritime workplaces are safe for remaining and replacement workers.
• A template ports and shipping assistance package, based on the key worker status of port and shipping workforces, that supports port and ship operators who experience a business downturn due to lower volumes of throughput being handled through Australian ports and who are incurring additional costs to keep workforces and workplaces safe, and such workforces in employment, so that the port gateways can continue to ensure the nation is supplied with essential goods such as food, fuel and medical supplies; and
• A strengthening of Commonwealth and state/NT regulatory and taxation/fees and charges arrangements to ensure that Australian businesses and their workforces are given full support and protection so that they are in a sound position to help deliver a stronger ports and shipping sector when a recovery from a disruptive event like the COVID-19 pandemic emerges.
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Recommendation 17: Recommend that policy and regulatory changes be made to overcome the critical risks in Australia’s supply chain resilience and biosecurity risks from the nation’s almost complete dependency on the use of foreign ships, not only in international inbound and outbound trade, but in domestic coastal trade. Recommendation 18: Recommend that the Federal Government proceed as a high priority to establish and maintain a national strategic fleet as an important first step in improving Australia’s supply chain resilience, and that to give effect to this policy commitment, the Government establish an independently chaired stakeholder and government task force to:
• Clarify the rationale and the principles for, and conditions under which, ships would fall into the national strategic fleet;
• Identify the types of ship operations that would form part of the national strategic fleet;
• Advise on the legislative, fiscal and regulatory arrangements that would establish and maintain a national strategic fleet; and
• Develop options for the funding and financing required to establish and maintain a national strategic fleet, including the public service and commercial opportunities arising from public investment in a national strategic fleet.
Recommendation 19: Recommend that the Federal Government urgently reform of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (CT Act) as proposed in this submission to restore balance in the coastal trading licencing regime to preference Australian ships with Australian crews in core trades including the large cruise sector, noting that utilisation of Australian ships that use a consistent core complement of Australian crews who can be subject to close health monitoring, tracking and tracing, and who can be trained in all the best practice COVID-19 control measures, is an essential and urgent post COVID-19 requirement, to ensure supply chain integrity and continuity, to strengthen WHS arrangements for seafarers, to strengthen Australia’s human biosecurity arrangements and to minimise modern slavery risk in the shipping industry.
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Failures in Australian oversight of the international shipping we rely on
As an island nation the Australian economy is heavily reliant on international shipping, both cargo and passenger, both sectors playing a strategic and important role in the economy. Ten per cent of the world’s sea trade passes through Australian ports and Australia relies on sea transport for 99 per cent of its international trade (by volume).23 In 2016–17, the value of Australia’s exports by sea was $252.1 billion and it imports $193.1 billion by sea. This involved 5,743 cargo ships which made 17,068 voyages to Australian waters from overseas ports, from a total of 5,845 uniquely identified cargo ships that made a total of 32 801 port calls at Australian ports in 2016–17.24 Australia is the largest iron ore exporter with 57 per cent of the world market, the second largest coal exporter with 30 per cent of the global market and the eighth largest grain exporter with 4 per cent of the world market. Globally, Australia is the fourth largest user of ships.25 In 2017, Australia was at the top of the global cruise industry for market penetration with 5.7 per cent of the population taking an ocean cruise. An independent assessment by AEC Group revealed that cruise tourism was worth $4.8 billion to the Australian economy in direct and indirect economic output during the 2017-18 financial year and that 1,236 ship visits to Australian ports led to 3.5 million passenger and crew visit days which raised $2.3 billion in direct economic output and $2.5 billion in indirect and induced output, as well as $2.6 billion in value-added dollars.26 Notwithstanding these impressive statistics, the COVID-19 pandemic has revealed a crisis in international shipping management and regulation. This is demonstrated for example, by the fact that in June 2020, some 200,000 international seafarers remain stranded on ships at sea, being forced to extend their contracts several weeks, and in some cases months, past the expiration of their employment agreement typically lasting up to 11 months, unable to return to their nations of origin, to access onshore medial services or be with their families.27 In addition, there has been a serious breakdown in the work health and safety systems on ships, meant to provide a safe workplace for international seafarers. On the cargo ship the Al Kuwait, the COVID-19 infection rate reached over 40 per cent of the onboard crew. On cruise ships the infection rate reached 8 per cent (compared to the average across the Australian population of 0.6 per cent), see case studies later in this submission. In the cruise sector, the lack of adequate WHS systems exacerbated the passenger infection rate (under WHS law employers have a duty of care to both seafarers and passengers), with devastating impacts on the Australian community. Also, seafarers have been regularly denied their rights, such as access to onshore medical facilities, encoded in
23 Department of Infrastructure and Regional Development, Trends: Transport and Australia’s Development to 2040 and Beyond, 2016, https://www.infrastructure.gov.au/infrastructure/publications/files/Trends_to_2040.pdf 24 Bureau of Infrastructure, Transport and Regional Economics (BITRE), Australian sea freight 2016–17, https://www.bitre.gov.au/sites/default/files/documents/asf_2016_17.pdf 25 United Nations Conference on Trade and Development (UNTAD), Review of Maritime Transport 2019, https://unctad.org/en/PublicationsLibrary/rmt2019_en.pdf 26 Cruise Lines International Association (CLIA), Cruise Industry Ocean Source Market Report – Australia 2017, https://www.cruising.org.au/Tenant/C0000003/Cruise%20Industry%20Source%20Market%20Report%20(1).pdf 27 Cruise Industry News, ITF/ICAO/IMO/ILO Organizations Call on Governments to Facilitate Crew Travel, 29 May 2020, and A Joint Statement on designation of seafarers, marine personnel, fishing vessel personnel, offshore energy sector personnel, aviation personnel, air cargo supply chain personnel, and service provider personnel at airports and ports as key workers, and on facilitation of crew changes in ports and airports in the context of the COVID-19 pandemic, 22 May 2020, https://www.itfglobal.org/sites/default/files/node/news/files/ICAO-IMO-ILO_JointStatement.pdf
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national legislation giving effect to ILO Conventions, such as the Maritime Labour Convention (MLC). This is modern slavery in action. Given the size and value of international shipping that is the global lifeline for the functioning of the Australian economy and the means by which the nation participates in global value chains, Australia is intimately linked to that crisis in international shipping regulation and management, and bears a large responsibility in helping to resolve that crisis. Australia therefore needs to take a lead in helping reform a broken international shipping regulatory and management system. The efficiency and functionality of ships and shipping, both international and domestic, along with port operations is crucial to supply chain resilience and reliability. Notwithstanding the COVID-19 restrictions like border closures and quarantine arrangements that posed difficulties for ship crew changes, that impacted on rosters, combined with the confined working environments prevalent onboard and which exacerbated the isolation factor for seafarers, that gave rise to issues like fatigue and mental stress, ships and ports continued to function. Ships continued to deliver the nation’s exports that helped hold up the performance of the economy (at least to the March quarter at the time of this submission) and on the import side, the delivery of essential supplies like fuel, medical equipment, medicines and food that has sustained the nation during the COVID-19 pandemic. For many years, those who have raised concerns about Australia’s reliance on international shipping have been reassured that systems were in place to manage this risk, and that the responsible Australian agencies operated to the highest standards of safety and diligence. We provide below detailed case studies on how these systems and agencies failed in the case of the Ruby Princess cruise ship and of the Al Kuwait cargo ship. We document failures in the systems used to manage international shipping by the port authorities and the AMSA. We document how the companies operating these vessels and the flag states responsible for them also failed in their duties and functions. But the greatest failures took place in the management of workplace safety on board these vessels, which allowed the COVID-19 virus to spread. We document how biosecurity powers have caused further problems by running roughshod over the systems in place to protect seafarers and ensure they can access healthcare needed to reduce the spread of disease. As Australia continues to rely on international shipping through a growing international pandemic, these fundamental issues must be addressed, and the systems for managing and overseeing it completely overhauled.
Managing risk in workplaces dealing with international maritime trade
Many MUA members work in workplaces that constantly interface with international shipping. To deal with these risks, a 14-day quarantine period was recommended for ships arriving from certain countries, and then all countries - but this was inconsistently implemented. The case study of the inconsistent application of the quarantine period at Melbourne DP World was discussed earlier in this submission. The Port Authority of NSW and Maritime Safety Queensland did implement a 14-day quarantine period (except in the privatised Port of Brisbane, where there is no external port authority because of the way the port sale was organised). Terminal operators on the Pilbara adopted a set of risk mitigation measures including the requirement for vessels to wait the full 14 days after departure from their previous port before being granted a berth at the terminal. The Pilbara Port Authority developed a risk assessment process to determine the likelihood of risk and identify where vessels
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presented low risk, allowing them to enter the port before the expiration of the 14-day quarantine period. Pilbara Port Authority reported that some terminal operators were now moving to adopt the Port Authorities process. Queensland and Northern Territory implemented health checks for newly arrived vessels in their first port of call, but the 14-day quarantine period should be enforced by all ports for any ship arriving from an international port to their first port of call in Australia (exceptions to this could be declared, for example for vessels arriving from New Zealand or Pacific Islands). Health checks are important as the Biosecurity Status Document issued by Biosecurity (Commonwealth Department of Agriculture) relies on a self-declaration by the master in the Pre-Arrival Report. In most cases this did not trigger an inspection of the ship.28 In the cases of the MV Northern Precision, OOCL Norfolk and Cosco Thailand, declarations made under that MARS system led to vessels being required to remain outside the port, and NSW Health to transport COVID-19 tests out to the vessels. Gaps in the self-declaration process are discussed in the case study of the Al Kuwait. It also appears to us that there are restrictions on information gathered under Biosecurity Act processes being shared with other agencies (based on our interaction with government agencies in this period). The matter should be explored further and we recommend below that better systems for sharing this information be developed. The pre-arrival declaration cannot be the only method relied upon to control infectious diseases and needs to form part of a regime of WHS governance and application of control measures on the vessels, for example, documented evidence for cleaning protocols of “frequently touched areas” and the isolation protocols to be implemented while shore workers are on board the vessel. Biosecurity concerns must be balanced with a full and proper application of the MLC, particularly to facilitate crew changes and crew access to medical treatment onshore. This is discussed further in the case studies. Recommendation 20: A 14-day quarantine period should be enforced by all ports for any ship arriving from an international port to their first port of call in Australia (exceptions to this could be declared, for example for vessels arriving from NZ or Pacific Islands). International ship arrivals must be met in their first port of call by a medical professional who will carry out health checks and COVID-19 tests on all crew members. Darwin and WA do regularly receive ships from international ports with less than 14 days transit time so particular attention needs to be paid to measures in these ports. Any sick crew members must receive proper and immediate medical attention as per their rights under the Maritime Labour Convention.
Case study: COVID 19 on the Ruby Princess and in the NSW cruise ship industry
We submit that there was a breakdown in the application of the work health and safety (WHS) system, of WHS regulation and in biosecurity arrangements during the COVID-19 pandemic which resulted in maritime workers being exposed to avoidable risk of infection from COVID-19. We use the cruise industry in NSW as an example.
28 The Biosecurity Status Document (BSD) forms part of the Maritime Arrivals Reporting System (MARS) operated by Biosecurity under the Commonwealth Department of Agriculture. The MARS Pre-Arrival Report requires the Master/Agent/owner to declare any biosecurity threats, including human illness and in this case COVID-19 symptoms. The information contained within the BSD then informs the next steps of communication with agencies.
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In NSW we say this breakdown occurred in two circumstances: (i) in relation to the onshore (and on water) maritime workforce at NSW ports servicing cruise ships; and (ii) in relation to seafarers onboard international cruise ships docking at NSW ports. The examples we refer to involve the WHS arrangements applying in the case of the cruise ship, the Ruby Princess, but the principles apply to all cruise ships, and also apply to all cargo ships. We provide a case study of COVID-19 cases on board the cargo ship Al Kuwait later in the submission. It should also be noted that there were multiple COVID-19 cases in passengers and crew on number of other cruise ships at a similar time as the Ruby Princess. These ships have similar management structures, and we believe similar issues are present with these vessels and the companies that run them (Table 1). Table 1: Known cases of COVID 19 associated with cruise ships homeported in Australia. The Ovation of the Seas, Voyager of the Seas and Celebrity Solstice were ordered to leave NSW and Australian waters on 5 April 2020. All ships discharged their final passengers in Sydney on around the 17th-19th March 2020.
Ship name Flag
Beneficial owner (location)
Reported COVID cases
Homeport (where ship loaded and discharged passengers)
Ovation of the Seas Bahamas
Royal Caribbean (USA)
84 passengers Sydney, for multiple short trips from 19 Oct 2019 – March 2020
Voyager of the Seas Bahamas
Royal Caribbean (USA)
34 passengers and 5 crew
Sydney, for multiple short trips from 29 November 2019 – March 2020
Celebrity Solstice Malta
Royal Caribbean (USA)
12 passengers Sydney, for multiple short trips from 10 October 2019 – March 2020
Ruby Princess Bermuda
Carnival Corp (USA)
600 passengers, including 21 deaths. 190 crew, Approximately 10 crew treated in hospital.
Sydney, for multiple short trips from 22 Oct 2019 – March 2020
Source: IHS Maritime commercial ship database. NSW health media releases on 2 and 3 April. Naaaman Zhou, Ruby Princess crew fear for their health as ship leaves Australia, The Guardian, 23 April 2020.
Failures by the Port Authority of NSW
In relation to the onshore (and on water) maritime workforce at NSW ports servicing cruise ships, we submit that the Port Authority of NSW (PANSW)29 failed to adopt the required standards of due
29 The Port Authority of NSW (PANSW) is a statutory state owned corporation established under the State Owned Corporations Act 1989 (NSW) and Ports and Maritime Administration Act 1995 (NSW), and operates in accordance with those Acts. Other significant legislation affecting the PANSW for ship safety and WHS purposes includes:
• The Public Health (COVID-19 Maritime Quarantine) Order 2020 made under the Public Health Act 2010 of 28 March 2020;
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diligence and risk management practices in the performance of its functions, particularly the harbourmaster functions, which require it to determine if it is safe for a ship to berth at a NSW port for which the PANSW has ship navigation responsibility. In performing its functions, the PANSW did not put in place adequate and robust systems to ensure that they were made aware of any COVID-19 risk on cruise ships, that could create a health and or safety risk to port and on water workers in the port under the control of the PANSW. It is these port workers who are exposed to seafarers and or passengers on cruise ships like the Ruby Princess where all the available information indicated the likelihood of COVID-19 infection on board those ships. In the case of the Ruby Princess the PANSW failed to put in place a robust due diligence system to ensure it had all the information it needed from both the Ruby Princess cruise ship and NSW Health on the health status of seafarers and passengers to undertake an appropriate assessment of risk, and instead relied on “self-declaration” from the ship, notwithstanding:
• A World Health Organisation declaration of the COVID-19 pandemic in February 2020;
• The public information about COVID-19 infection outbreaks on the Diamond Princess and Grand Princess and learnings and experience available from those ships;
• Correspondence from the Sydney Branch of the Maritime Union of Australia (MUA) of 29 January 2020 to the PANSW raising concerns about the adequacy of ship self-declaration systems when dealing with a human biosecurity risk like COVID-19 and proposing that Departmental biosecurity officers undertake their own biosecurity assessments aboard the ship before unloading/loading passengers or cargo, and not rely upon the self-declaration reports provided by ship’s masters. The self-declaration systems referred to are: (i) the Department of Agriculture, Water and the Environment (Department of Agriculture) Pre-Arrival Report (PAR) and Human Health Report as part of the Maritime Arrivals Reporting System (MARS); (ii) the NSW Health Pre Arrival Risk Assessment and Acute Respiratory Diseases (ADR) Log; and the PANSW Biosecurity Declaration.30
• The concerns that the PANSW held about the veracity of health information being supplied by the Ruby Princess when it docked on 8 March 2020, as evidenced by PANSW witnesses statements tendered, and evidence given by PANSW executives, before the NSW Special Commission of Inquiry into the Ruby Princess31 that could have been utilised in decision making about the entry of the Ruby Princess to Sydney Harbour on 18/19 March 2020; and
• The fact that the Ruby Princess had cut short its NZ cruise itinerary due to respiratory illness on board the ship, prior to returning to Sydney on 18/19 March 2020.
• The Biosecurity Act 2015 (Cth) and in particular the Biosecurity (Human Biosecurity Emergency)
(Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020 made under the Biosecurity Act, of 27 March 2020;
• The Marine Safety Act 1998 (NSW) and associated Regulations;
• The Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth);
• The Maritime Transport and Offshore Facilities Security Act 2003 (Cth) and associated Regulations;
• The Navigation Act 2012 (Cth) and in particular, Marine Order 64 (Vessel traffic services) 2013, made under that Act; and
• The Work Health and Safety Act 2011 (NSW) and associated Regulations. 30 The PANSW Biosecuruty Declaration at April 2020 inlcuded six questions: (i) What were the last 5 ports of call?; (ii) Are there any ill passengers or crew on board?; (iii) Are any crew members showing symptoms of COVID-19 on board?; (iv) Has the vessel been in mainland China, Iran, Republic of Korea, or Italy in the last 14 days?; (v) What date did the vessel depart these countries?; (vi) Has any person on the vessel been in contact with a proven case of novel coronavirus infection in the last 14 days?. It also asked: Are there any crew or passengers who have left, or transited through, mainland China, Iran, Republic of Korea, or Italy less than 14 days ago? 31 See for example the Statement of Stephen Howieson dated 27 April 2020 (Exhibit 25) at Para 60 –https://www.rubyprincessinquiry.nsw.gov.au//assets/scirp/files/Exhibit-25.pdf , Exhibit 23 (The statement of Sarah Marshall), Annexure J, P44/45 and Exhibit 25, PP89-119.
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We understand that the PANSW commenced an investigation shortly after 8 March 2020 as to why the ship had reported to the PANSW Vessel Traffic Services (VTS) it had no ill passengers or seafarers onboard, despite reporting through the MARS, required by the Department of Agriculture under Section 193 of the Biosecurity Act 2015, that there were 128 people on board who were sick, 24 of whom had an elevated temperature (we don’t know how many, if any were seafarers, though we know that 3 seafarers were swabbed in port on 8 March 2020). This raises a concern about false declarations from ships to PANSW, especially when the MARS report provided by the ship’s master on 18 March 2020 advised there were 36 people on board with respiratory symptoms, just under the 1% threshold used by NSW Health to meet its ‘low risk’ assessment on a respiratory outbreak (that did not trigger on board testing). There were a total of 3,795 people on board at 18 March 2020, comprising 2,647 passengers and 1,148 seafarers.32 Notwithstanding the PANSW concerns, and commencement of an investigation which resulted in production of a PANSW COVID19 Response Scenario Matrix to assist the harbourmaster and VTS staff in managing ship arrivals/departures during the COVID-19 pandemic, the PANSW did not sufficiently elevate its risk management processes, did not properly promulgate awareness of the Matrix to ensure it was well understood among staff, nor provide adequate training (if any) to ensure that VTS staff knew how to use the Matrix. Additionally, PANSW did not effectively utilise its statutory powers. There is no reason why the PANSW could not, as one outcome from its investigation, have sought a Ministerial Direction under section 87 (General functions of harbour master) subsection (3) (The exercise of the functions of a harbour master are subject to any directions given from time to time to the harbour master by the Minister) to strengthen the VTS reporting requirements from cruise ships (or all ships), and to ensure there was sharing of MARS advice from the Department of Agriculture and of health assessments undertaken by NSW Health. These failures, along with the failure of NSW Health to undertake an adequate health due diligence process before determining the Ruby Princess was “low risk” (in our view it should have tested all seafarers and passengers and had the results prior to disembarkation), thus approving disembarkation before COVID-19 swab results were known that are well documented in the evidence before the Commission Inquiry into the Ruby Princess, led to the PANSW having both inadequate information and inadequate processes to perform a risk assessment on: (i) the health and safety risks and therefore the controls required to ensure the health and safety of the marine pilot who was required to board the Ruby Princess on 18 March 2020; and (ii) whether it was safe for the ship to proceed to berth, and once berthed and new information about possible COVID-19 infection on board came to the attention of the PANSW33 staff prior to disembarkation, whether to return to anchor in Sydney Harbour to prevent disembarkation, which would have provided time to make those important assessments about the health and safety risks to onshore workers involved in baggage handling and other wharfside roles once disembarkation of passengers was to proceed, as it did on 19 March 2020. We say that the sole discretion to determine the navigation of the ship in Sydney Harbour rested with the PANSW harbourmaster, and not with any Commonwealth agency, or the NSW Commissioner of Police. We note in evidence before the NSW Commission of Inquiry into the Ruby Princess that NSW Health has relied on one of two methods to determine if a ship is low, medium or high risk in determining the appropriate biosecurity response i.e. what action is to be taken before disembarkation or
32 NSW Commission of Inquiory into the Ruby Princess, Statement of Stephen Howieson, Human Health Report, P114-116, 27 April 2020 (Exhibit 25). 33 Statement of Stephen Howieson dated 27 April 2020 (Exhibit 25), whole statement
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unloading. The first method is whether the number of cases presenting with ILI (Influenza Like Illness) exceeds that expected for the specific itinerary and season (an outbreak) drawn from the US Center for Disease Control (CDC) definition of “1.38 cases per 1,000 traveller days”, while the second method, favoured by NSW Health, is outbreaks of influenza or ILI (≥ 1%) among passengers and crew members. 34 We wish to make the point that neither methodology should be accepted as a risk threshold for work health and safety purposes, where the standard must be zero tolerance of infection. Furthermore, it appears that PANSW did not have an agreed procedure with NSW Health to ensure that both agencies compared intelligence so the health status of seafarers and or passengers could be properly assessed before making critical decisions on: (i) berthing a cruise ship which brings the ship into contact with onshore workers (not only those directly related to the ship operations, but for example, private sector security workers and public sector workers from various state and Federal agencies); or (ii) disembarking a cruise ship, which releases passengers and seafarers (who may be completing a swing or a contract and returning to their home city or nation) into the community. PANSW also failed as an employer to comply with its duty as a PCBU to consult with workers under sections 47 to 49 of the NSW Work Health and Safety Act 2011 (WHS Act NSW). Section 47 imposes a duty to consult, while s48 outlines the nature of consultation that inter alia requires the views of workers to be considered and that decisions taken reported back to the workforce. S49 addresses the circumstances when consultation is required – all subsections being highly relevant in relation to the COVID-19 risks. It also requires that the PCBU i.e. PANSW must also have meaningful and open consultation about work health and safety with workers, HSRs, and health and safety committees. No such consultation occurred as far as we are aware. The same duties fell on the other PCBUs at the Sydney Overseas Passenger Terminal i.e. employers of labour at the port servicing cruise ships and the Ruby Princess in particular. We are concerned that the towage company, Engage Marine, the mooring company, Ausport Marine and the bunkering company Inco Ships, may not have fully complied with their s47 obligations as a PCBU under the WHS Act NSW. Whilst ignorance of the law is not a defence, it may well have been the apparent lack of structured communication channels between the PANSW and its contractors that may potentially have led those companies to not comply with their statutory obligations. It also appears that PANSW had no formal relationship with SafeWork NSW which presumably could have been of major assistance to PANSW in designing and implementing robust WHS due diligence and risk assessment processes, to implementation of hazard control measures and provision of guidance to its workforce, as well as to the companies it engages to perform port services, as well as to its stakeholders, including ships entering Sydney Harbour. It is now clear that health pandemics as declared under Biosecurity and Health Acts should be notifiable incidents under the WHS Act NSW and that the WHS Act NSW be amended to accommodate that requirement. Throughout the COVID-19 pandemic, we have been concerned about the lack of visibility of SafeWork NSW, especially in relation to ports where Australian workforces come into direct contact with ships in the context of the well-publicised risk of COVID-19 transmission from workers (and in the cruise sector, passengers) arriving from other countries with know COVID-19 outbreaks. It was of course those known risks that resulted in the Australian Border Force (ABF) advice on Restrictions on Commercial Maritime Vessels and Crew: Travel restriction for all non-Australian citizens and non-
34 NSW Commission of Inquiry into the Ruby Princess, Exhibit 28: Statement of Dr Sean Tobin, 29 May 2020, Para 33, https://www.rubyprincessinquiry.nsw.gov.au//assets/scirp/files/Exhibit-28.pdf
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residents issued on 1 April 2020, and other measures taken by some State port regulators to reduce COVID-19 transmission risk. If NSW Health was primarily concerned with passengers and broad public health issues, and if the PANSW was primarily concerned about the navigational safety aspects of the ship, that surely requires SafeWork NSW to be concerned about the onshore and on-water workforce interface with incoming ships at NSW ports. While SafeWork NSW provided case study guidance information for some specific sectors such as agriculture, construction, grocery/retailer, office environments, road freight, small business tradespeople and taxi and ride share, it provided no guidance to the marine sector, and nothing specifically for the cruise ship sector, notwithstanding the high viral transmission risk. It is our submission that PANSW performance as an Australian Maritime Safety Authority (AMSA) authorised Vessel Service Traffic (VTS) provider under Marine Order 64 (Vessel traffic services) 2013 should be reviewed by AMSA or an independent auditor, and at the very least AMSA should impose new conditions on PANSW requiring it to:
• Develop, in consultation with stakeholders, a new risk assessment framework that addresses WHS risks for port workers such as the risks arising from communicable diseases like COVID-19: ➢ And that the new protocols include a publicly available MOU or similar instrument
setting out cooperative information exchange and communication arrangements between the two organisations, and that part of that communication require the PANSW to convey decisions arising from communication and information exchange to the port workforce, maritime unions and employers of port workers;
• Consult SafeWork NSW, NSW Health, employers of workers who perform roles at NSW ports and their trade unions on the WHS risks, on new WHS standards (integrated with health agency standards) and due diligence processes and protocols to ensure risks to the health and safety of all port workers are taken into consideration in decision making by the harbourmaster and VTS staff in relation to ship entry to ports in circumstances where communicable diseases are prevailing and or pandemics declared; and
• Re-train all VTS staff, including management and the crisis management team, in new risk assessment and risk procedures and protocols.
Failures by the Australian Maritime Safety Authority (AMSA)
It is our submission that AMSA failed to perform its Port State Control (PSC) functions under the Navigation Act 2012, functions derived from Australian ratification of the International Labour Organisation (ILO) Maritime Labour Convention (MLC), thereby contributing to seafarers on cruise ships operating in Australian waters, the seafarers on the Ruby Princess in particular, being unnecessarily exposed to the COVID-19 disease. There are two aspects to AMSAs PSC function where AMSA failed. First, that in conformance with the objective in Article IV(1) of the MLC (“Every seafarer has the right to a safe and secure workplace that complies with safety standards”) and Article IV(4) of the MLC (“Every seafarer has a right to health protection, medical care, welfare measures and other forms of social protection”), AMSA did not take appropriate steps, in the context of the heightened risks to the health and safety of seafarers from COVID-19, to ensure cruise ships, the Ruby Princess in particular, were a safe workplace nor to ensure that seafarers had adequate medical care arising from COVID-19 illness. Second, that it did not respond appropriately to complaints from seafarers in accordance with Division 19 (Onshore complaints) of Marine Order 11 ([Living and working conditions on vessels]
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201535) made under the Navigation Act 2012 (noting that Division 19 of MO11 is one of 2 Divisions in the Marine Order that applies to foreign ships by virtue of s6(2) (application)) where s96(3) of Division 19 requires that AMSA must investigate a complaint from a foreign registered ship and in so doing act in accordance with its obligations under MLC regulations 5.1.4, 5.2.1 and 5.2.2. Nor did AMSA undertake any inquiries of seafarer industrial organisations, NSW Government agencies or other organisations that regularly communicate with foreign seafarers in Australian waters such as seafarer welfare organisations and employee assistance providers(EAPs), nor undertake any direct due diligence assessment or inspection to determine if there were any complaints or matters relating to WHS risk from COVID-19 that required investigation. Two seafarer complaints were submitted to AMSA by the Australian Inspectorate of the International Transport Workers Federation (ITF). Regulation 5.1.4 of the MLC (Inspection and enforcement) essentially provides for the relevant regulator to have in place a system of inspection and for enforcement. Regulation 5.2 is about enabling the regulators in each nation to implement its responsibilities under the MLC under a system of international cooperation for the implementation and enforcement of the Convention standards on foreign ships. In that context, Regulation 5.2.1 (Inspections in port) provides for the PSC regulator (AMSA in this case) to undertake ship inspection for the purpose of reviewing compliance with the requirements of the MLC (including seafarers’ rights) relating to the working and living conditions of seafarers on the ship (and those catch all provisions specifically includes WHS [denoted in the MLC as Health and safety and accident prevention; and On-board medical care]). One of the provisions applying to Regulation 5.1.4 provides that the PSC regulator can board a ship to inspect if there is a belief that the working and living conditions on the ship do not conform to the requirements of the MLC. We submit that given all the national and international knowledge of COVID-19, the experiences of cruise ships such as the Diamond Princess and Grand Princess and the previous experience of the Ruby Princess docking on 8 March 2020 that AMSA should have had a heightened concern about COVID-19 risk to the health and safety of ship’s seafarers and should have inspected all cruise ships in Australian ports, the Ruby Princess in particular, to satisfy itself that the requirements of the MLC to provide a safe workplace for seafarers (and passengers, to whom the company also owes a duty of care) was in fact the case, and as part of that inspection, should have conferred with the organisations listed below and have regard to the documents listed below:
• The Bermuda Shipping and Maritime Authority (BSMA) (the Ruby Princess is registered [flagged] in Bermuda) and in particular ensured the ship was complying with the requirements of the Bermuda Merchant Shipping (Health and Safety At Work) Regulations 2004 (BR 52/2004) and Bermuda Merchant Shipping (Seafarer’s Employment) Regulations 2013 and any advices the BSMA had published for Bermudan registered ships, such as the Bermuda Merchant Shipping Guidance Notice: Prevention and Management of COVID-19 on Board of 3 April 2020;
• The Seafarers Employment Agreements signed individually by each seafarer member (which incorporate seafarer collective agreements, in this case being collective bargaining agreements (CBAs) between Princess Cruise Lines Ltd and the Italian Federation of Transport Workers (FILT/CGIL) and Italian Transport Federation (FIT/CISL)) to assess what those CBAs require of the employer regarding safe workplaces, noting that Articles 5.2 (Illness or injury [medical on board or onshore]) and Article 29 (Shipboard safety committee and safety representative) in the CBA covering seafarers are relevant;
35 Marine Order 11 is the principal legislative instrument that gives effect to Australian ratification of the International Labour Organisation (ILO) Maritime Labour Convention (MLC) and guides AMSAs performance of its Flag State Control (FSC) function in relation to Australian (and in some circumstances foreign) flagged ships.
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• The Princess Cruise Lines Ltd Safety Policy and the Injury and Illness Prevention Program required by the California Occupational Safety and Health Act of 1973 (the company is based in the State of California);
• The Princess Cruise Lines Ltd Safety Management System for the Ruby Princess, required by the International Safety Management (ISM) Code made under the IMO International Convention for the Safety of Life at Sea (SOLAS) Convention and the ILO Guidelines on occupational safety and health management systems, ILO-OSH 2001;
• The ship Safety Committee, to obtain minutes of its meetings and to know if it conveyed any views to the company on COVID-19 risks and about hazard controls for COVID-19;
• Company managers (on board and onshore) with responsibility for WHS, and Safety Representatives (as described under Bermuda law [the equivalent of Health and Safety Representatives (HSRs) under Australia’s model WHS laws]) elected by the workforce or appointed by trade union parties to the collective agreement/s;
• The ship’s medical team, medical facilities and supplies of hazard controls such as PPE;
• Agencies such as the Port Authority of NSW regarding its expectations and advices to the ship and NSW Health as to its systems for determining health risk and advices it had provided to the ship;
• The ship’s port agent;
• COVID guidance (from various agencies such as from the ILO, IMO, WHO, BSMA, as well as Australian health and WHS agencies36) applicable to the ship; and
• The trade union representatives of the seafarers i.e. the ITF or any of its seafarer affiliates. It is our submission that seafarers on board the Ruby Princess:
• Were not properly advised of the risks to their health and safety from COVID-19 from the time of an outbreak of illness on the ship during its voyage from Sydney to NZ commencing on 8 March 2020 until the ship departed Australia on 23 April 2020;
• Were not provided with appropriate PPE at all times from the period since 8 March 2020 i.e. for the whole time the vessel was in Australia and NZ from 8 March 2020 until 23 April 2020;
• Were not properly instructed in how to comply with health agency and WHS agency advice on COVID-19 hazard controls; and
• Testing for COVID-19 for all seafarers was not performed: ➢ This situation existed, notwithstanding that:
❖ Three seafarers and six passengers from the previous cruise had exhibited COVID-19 like symptoms, were kept in isolation and were swabbed by NSW Health on arrival of the ship on 8 March 2020 (even though the results were negative);
❖ The PANSW commenced an investigation shortly after 8 March 2020 as to why the ship had reported to the PANSW VTS it had no ill passengers or seafarers onboard, despite reporting through the Maritime Arrivals Reporting System (MARS) that they had 128 people who were sick, 24 of whom had an elevated temperature;
❖ Despite 3 seafarers being held in isolation in the period leading up to docking on 8 March 2020, being tested and the ship being delayed in port for some hours for its next departure due to COVID-19 risks before it sailed from Australia late on 8 March 2020; and
❖ Despite seafarer concerns about COVID-19 infection resulting in requests to company managers for testing, by seafarers themselves and the ITF representing the seafarers.
36 See for example Safe Work Australia, National COVID-19 safe workplace principles, https://www.nsw.gov.au/sites/default/files/2020-05/National%20COVID-19%20safe%20workplace%20principles%20-%2024%20April.pdf
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As a result, and based on the best information available to the MUA:
• Some seafarers were again required to isolate in their cabins due to exhibiting COVID-19 like symptoms prior to the ship arriving in Australia on 18/19 March 2020, but were not among those who were swabbed for onshore testing on the instruction of NSW Health when the ship docked in Sydney on 19 March 2020;
• At the time that Aspen Medical (contracted to Australian Border Force) collected swabs from somewhere between 80 and 100 symptomatic seafarers while the ship was docked in Port Kembla on 9 April 2020 around 46 tested positive. These seafarers were placed in isolation in NSW hotels for treatment, 11 then returning to the ship for sailing on 23 April 2020, while 33 were repatriated by air to their home nation.
• Despite the testing, isolation and treatment in hotels of those who tested positive, and NSW Health declaring the ship was clear to sail on 23 April 2020, by the time the ship was off the Qld coast on its way to Manila, Philippines, another 6 seafarers exhibited COVID-19 symptoms and were isolated in their cabin, with an additional seafarer exhibiting symptoms and being isolated by the time the ship arrived in Manila.
The net result is that by early April 2020 at least 100 Ruby Princess seafarers of the 1,200 seafarers on board (or over 8 percent) were ill with, highly likely, COVID-19 infection of which 46 (or 3.8 per cent) tested positive and required special medical treatment in isolation. This contrasts with a positive test results for the entire Australian population of 0.6 per cent (at 26 May 2020).37 There could be no more damming evidence of failure to protect the health and safety of seafarers on the Ruby Princess and clearly indicates that the Port Authority of NSW, NSW Health, SafeWork NSW, AMSA, the Bermuda Shipping and Maritime Authority and Princess Cruise Lines Ltd have all failed their duty of care to seafarers and or failed to perform their regulatory functions to ensure the ship was a safe workplace and safe to voyage into international waters. In the case of AMSA and the Bermuda Shipping and Maritime Authority these PSC and Flag State Control (FSC) regulators demonstrated a failure to ensure conformance with the ILO MLC as given effect by both Australian and Bermudan law. To the best of our knowledge, AMSA did not confer with any of the organisations or bodies listed above nor did it refer to any of the source documents listed above to ensure it was aware of the legal responsibilities of Princess Cruise Lines Ltd (the PCBU) and to ensure compliance. The high level of COVID-19 infection among seafarers is due in part to the failure of AMSA to perform its regulatory functions. Regulation 5.2.1 of the MLC deals with how onboard complaints should be managed. It says the inspection shall generally be limited to matters within the scope of the complaint, although a complaint, or its investigation, may provide clear grounds for a detailed inspection especially if the complaint is of a nature that could have application to the workplace as a whole. Note that for the purpose of the Regulation given effect by Standard A5.2.1 (1)(d) of the MLC, a “complaint” means information submitted by a seafarer, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the ship, including an interest in safety or health hazards to seafarers on board. Regulation 5.2.2 (Onshore seafarer complaint-handling procedures) sets out the process that must apply to ensure that seafarers on ships calling at a port who allege a breach of the requirements of the MLC have the right to report such a complaint in order to facilitate a prompt and practical means
37 Commonwealth Department of Health, Total COVID tests conducted and test results, 26 May 2020, https://www.health.gov.au/resources/total-COVID-19-tests-conducted-and-results
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of redress. It requires that in cases where complaints are not resolved, the regulator must inform the appropriate shipowners’ and seafarers’ organisations in the port State. In summary, we submit that AMSA did not perform as required on both these aspects of the MLC in – ensuring cruise ships and the Ruby Princess in particular, were a safe workplace and to ensure that seafarers had adequate medical care arising from COVID-19 illness; and that seafarer complaints were managed as required. We do not know if AMSA has a Memorandum of Understanding with the Bermuda Shipping and Maritime Authority, which we understand is a member of the Paris PSC Group (given Bermuda is a British Overseas Territory) and although AMSA is not a member of the Paris PSC Group, as a member of the Tokyo PSC Group covering the Asia Pacific region, it could readily have made contact with the Bermuda Shipping and Maritime Authority or the Paris MOU Group to establish an arrangement for managing the PSC functions as a collaboration between the two PSC agencies. To our knowledge this was not done. The lack of clarity about PSC responsibility for foreign registered ships undertaking international voyages has been starkly revealed in the case of the Ruby Princess while in Australian waters (in the territorial sea). We submit that AMSAs role as the Australian PSC regulator should be the subject of an independent investigation that is undertaken with the imprimatur of the ILO so the findings gain a level of international ownership and response for application to the worldwide international shipping industry.
Failures by Princess Cruises Lines Ltd
The Ruby Princess is registered in Bermuda. The ship owner is Carnival Corporation, a US company based in Florida and the ship operator is Princess Cruises Lines Ltd, a US company based in California. Carnival Corporation and Carnival plc are two entities operating as one but trading on both the New York and London stock exchanges. The seafarers on the Ruby Princess, totalling approximately 1,200 are offered to the ship operator by nation based crewing agencies in nations like the Philippines. The Ruby Princess seafarers originate from many different nations including Italy, UK, Croatia, Bulgaria, Philippines and Indonesia. The collective bargaining agreements covering seafarers are made between Princess Cruises Lines Ltd and Italian seafarer labour unions, consistent with an ITFSpecial Agreement.38 All seafarers39 on the Ruby Princess are required by the MLC and by Section 4 of the Bermuda Merchant Shipping (Seafarer’s Employment) Regulations 2013 (BR 107 / 2013), which applies to any ship registered in Bermuda, to have a signed seafarer’s employment agreement (SEA) which shall be in writing, and by virtue of s8 of those Regulations, where any of the terms included in a seafarer’s employment agreement are set out in a collective bargaining agreement these shall be referred to in the SEA and shall form part of that employment agreement. The CBA for Ruby Princess seafarers was signed on 1 January 2019 between Princess Cruises Lines Ltd and the Italian Federation of Transport Workers (FILT/CGIL) and Italian Transport Federation (FIT/CISL) and so forms part of the
38 An ITF Special Agreement is a legally binding document that binds the employer to the relevant ITF approved Collective Bargaining Agreement (CBA). It states which CBA applies, it gives the details of the ship covered and it states the dates the agreement is valid from/to. It states the shipowner obligations and it also states the legal right of ITF representatives to access and inspect the vessel for compliance with the agreement. 39 A seafarer is defined in the MLC and in the Bermuda Merchant Shipping (Seafarer’s Employment) Regulations 2013 as “any person, including a master, who is employed or engaged or works on any capacity on board a ship, on the business of the ship”
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SEA for Ruby Princess seafarers. Given those requirements and agreements, seafarers on the Ruby Princess are to the best of our knowledge, employees of Princess Cruises Lines Ltd. That being the case, Princess Cruises Lines Ltd as both employer and ship operator, is likely to be bound by:
• The California Occupational Safety and Health Act of 1973, requiring it by virtue of section 3203 (Injury and Illness Prevention Program) to establish, implement and maintain an effective Injury and Illness Prevention Program;
• The Bermuda Shipping and Maritime Authority Merchant Shipping (Health and Safety at Work) Regulations 2004 (BR 52/2004), requiring it (as a duty) to: ➢ Ensure the health and safety of workers and other persons [for example, passengers] so
far as is reasonably practicable, which duty shall be met by the application of the following principles: ❖ The avoidance of risks, which among other things include the combating of risks at
source; ❖ The evaluation of unavoidable risks and the taking of action to reduce them; ❖ Equipment, the working environment and any other factors which may affect health
and safety; ❖ Adoption of a coherent approach to management of the vessel or undertaking,
taking account of health and safety at every level of the organisation; ❖ Giving collective protective measures priority over individual protective measures;
and ❖ The provision of appropriate and relevant information and instruction for workers.
➢ Without prejudice to the generality of the duties the matters to which those duties extend shall include in particular: ❖ Provision of systems of work that are, so far as is reasonably practicable, safe and
without risk to health; ❖ Maintenance of all places of work in the ship in a condition that is, so far as is
reasonably practicable, safe and without risk to health; ❖ Arrangements to ensure, so far as is reasonably practicable, that no person has
access to any area of the ship to which it is necessary to restrict access on grounds of health and safety unless the individual concerned has received adequate and appropriate health and safety instruction;
❖ Provision and maintenance of an environment for persons aboard a ship that is, so far as is reasonably practicable, safe and without risk to health;
❖ Collaboration with any other persons to protect, so far as is reasonably practicable, the health and safety of all authorised persons aboard the ship or engaged in loading or unloading activities in relation to that ship.
➢ Establish and maintain a health and safety policy. ➢ Undertake risk assessments to assess the risks of the health and safety of workers
arising in the normal course of their activities or duties, for the purpose of identifying: ❖ Groups of workers at particular risk in the performance of their duties; and ❖ The measures to be taken to comply with the employer’s duties under these
Regulations; and: ✓ Any significant findings of the assessment and any revision of it shall be brought
to the notice of workers. ❖ This assessment shall extend to the risks to the health and safety of other persons on
board a ship in so far as they may be affected by the acts and omissions of the employer: ✓ The assessment shall be reviewed if there is reason to suspect that it is no longer
valid; or there has been a significant change in the matters to which it relates:
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o Measures shall be taken, and if necessary protective equipment supplied, to ensure an improvement in the health and safety of workers and other persons in respect of those risks identified and workers shall be informed of the measures taken for their protection.
• The MLC rights, requiring it to ensure every seafarer has a right to health protection, medical care, welfare measures and other forms of social protection (Article IV).
Based on the advice the MUA has received from the Australian Inspectorate of the ITF (regarding the concerns of seafarers about lack of onboard action to protect their health), which was in regular communication with seafarer members on the Ruby Princess during the period the ship entered Sydney Harbour around 18 March 2020 up until it reached the Philippines having departed Port Kembla on 23 April 2020, and on the evidence before the Commission of Inquiry into the Ruby Princess, we submit that Princess Cruises Lines Ltd has failed in its duty of care to seafarers on the Ruby Princess. It is our view that Princess Cruises Lines Ltd should be the subject of an independent investigation regarding its WHS practices on the Ruby Princess by a panel of WHS experts, trade union and ship owner representatives led by a non-Australian PSC Regulator such as Maritime NZ, preferably with the imprimatur of the ILO so the findings gain a level of international ownership and response. We say there has been a systemic WHS failure applying to cruise ships in Australia during the COVID-19 pandemic, that has implications for the entire management of WHS applying to international seafarers in the international shipping industry. It is our proposition that the WHS of international seafarers must be the responsibility of at least one WHS regulator, yet this appears to be unclear while international ships are within Australia’s jurisdictional responsibility under laws giving effect to international Conventions applying to ships that impact on seafarers WHS. It is our view that the appropriate regulator is AMSA and it should therefore have assessed if the principal seafarer employer (Princess Cruise Lines Ltd) complied with its duty of care to both seafarers and passengers in accordance with the company’s safety policy and safety management system and with relevant WHS law and guidance. We say that AMSA had that responsibility directly (or at the very least on behalf of the Bermuda Shipping and Maritime Authority) consistent with the requirement for international cooperation implied by the MLC. If in the circumstances of the Ruby Princess there was any doubt as to the duty of Princess Cruises Lines Ltd to provide a safe workplace, or doubt about which legislation applies, AMSA could have sought advice from Safe Work Australia or SafeWork NSW (with which it has a Memorandum of Understanding that provides guidance on respective jurisdictional responsibilities in maritime operations between the two organisations), to ensure that the employer was adopting exemplary WHS practice, and had in place the expected hazard responses based on the principles of all contemporary WHS laws. Alternatively, or in addition, it should have sought to settle an arrangement with the Bermuda Shipping and Maritime Authority.
Failures by the NSW and Commonwealth Health Ministers
It appears to the MUA that both the NSW Health Minister and Commonwealth Health Minister, when exercising their powers under respective legislation either by design and intent, or based on poor advice, when making, in the case of the NSW Minister the Public Health (COVID-19 Maritime
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Quarantine) Order 2020 of 28 March 2020 and in the case of the Commonwealth Minister, when making the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020 of 27 March 2020, to have overridden the operation of NSW WHS law, Commonwealth WHS law, marine law and laws conferring rights on seafarers. We think this may have occurred because of the principle that Commonwealth law overrides State law to the extent of any inconsistency (derived from section 109 of the Constitution). As the biosecurity powers derived from a Commonwealth law, it and the broad biosecurity arrangement were possibly thought to prevail. We say that if this was the basis for the apparent overriding of State laws, it was an incorrect interpretation as there was no inconsistency on foot. In the case of the hierarchy of powers or authority between NSW state agencies, it appears that the PANSW and SafeWork NSW deferred to powers exercised by NSW Health under the NSW Public Health Act 2010, but that does not seem to have been tested or challenged, or a division of powers worked out to enable the specialist responsibilities of each agency under the laws they administer, to continue to function in a cooperative manner. The result is that safety regulators such as the NSW Port Authority, SafeWork NSW and AMSA may have been impeded, legally or by misinterpretation or ignorance, from performing their ship and seafarer safety regulatory functions. Furthermore, we submit that the NSW Commissioner of Police:
• Exceeded his power under the NSW Public Health Order in preventing seafarer representative organisations and WHS inspectors from accessing seafarers on board the Ruby Princess and in doing so: ➢ Contributed to seafarers having an unsafe workplace resulting in many seafarers
contracting COVID-19; ➢ Denied ill seafarers the right to onshore medical services in contravention of the
requirements of the MLC; ➢ Denied seafarers their common law right to legal representation in relation to interviews
arising from police evidence gathering processes in relation to a criminal investigation instigated by the NSW Premier; and
• Was not properly authorised under the Biosecurity Determination to instruct ship’s masters to leave Australian waters, and even if that power was properly authorised, failed to consult with and take into consideration advice from the following organisations in making such decisions: ➢ The NSW Port Authority which has statutory responsibilities regarding ship navigation
within the PANSW VTS area that requires PANSW to ensure the seafarers on board are safe (well enough, and not face known risks to their WHS that could impact on the safe navigation of the ship in international waters after leaving Australia);
➢ AMSA regarding the WHS and welfare of seafarers, again to ensure that the seafarers could safely navigate the ship once it left Australian waters and entered international waters;
➢ Seafarer representative organisations regarding the labour rights of seafarers. Recommendation 21: Acknowledge there was a breakdown of work health and safety (WHS) systems and regulation in the maritime industry during the COVID-19 pandemic, which is jeopardizing the health and safety of international seafarers on ships voyaging to and from Australia and workers in Australian ports. Recommendation 22: Acknowledge that there remain failings in the Australian biosecurity arrangements applying in ports and in dealing with international ships docking at Australian ports,
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which is compounding the health and safety risk to seafarers, to port workers and to the Australian community from the transmission of communicable diseases such as COVID-19. Recommendation 23: That health pandemics as declared under Biosecurity and State/Territory Public Health Acts should be determined to be notifiable incidents under the WHS Acts in all jurisdictions and that WHS Acts be amended to accommodate that requirement. Recommendation 24: That AMSA’s role as the Australian Port State Control (PSC) regulator be the subject of an independent investigation involving the International Labour Organisation (ILO) so the findings gain a level of international ownership and response. Recommendation 25: That the Australian and State Governments reform Australia’s biosecurity arrangements by:
• Amending the Commonwealth Maritime Arrivals Reporting System (MARS), the NSW Health Pre Arrival Risk Assessment and Acute Respiratory Diseases (ADR) Log reports, and the PANSW Biosecurity Declaration (with application to all States and the Northern Territory) to provide clear instructions to ships’ masters on the quality and detail of reporting, that must contain co-signing by the chief onboard officer responsible for seafarer and passenger health;
• Ensuring there is a common and highly precautionary threshold standard used by State and NT health agencies to determine risk of community transmission of a communicable disease;
• Substantially increasing penalties for false or misleading or inadequate information provision by ships masters;
• Requiring that the state agencies responsible for human biosecurity health assessments of seafarers and passenger be mandated to undertake comprehensive onboard health assessment of seafarers and passengers in circumstances where the WHO or Australian biosecurity officials have declared an outbreak of a communicable disease, before any other onshore workers are permitted to board a ship and before approval is given for ships to commence unloading cargo or disembarking crew and or passengers; and
• Requiring that all biosecurity, immigration, customs and marine agencies develop and implement, and make public, appropriate interagency communication protocols that ensures full disclosure of ship reporting under the Pre Arrival Report in MARS to other agencies including marine and WHS agencies, and build these protocols into risk management systems.
Recommendation 26: that the Australian Maritime Safety Authority (AMSA), consistent with its responsibility to authorise Vessel Service Traffic (VTS) providers under Marine Order 64, engage an independent auditor to undertake a review of its VTS authorisation of the Port Authority of NSW (PANSW) with a view to imposing new conditions on PANSW requiring it to:
• Develop, in consultation with stakeholders, a new risk assessment framework that addresses WHS risks for port workers such as the risks arising from communicable diseases such as COVID-19:
o And that the new protocols include a publicly available MOU or similar instrument setting out cooperative information exchange and communication arrangements between the two organisations, and that part of that communication require the PANSW to convey decisions arising from communication and information exchange to the port workforce, maritime unions and employers of port workers;
• Consult SafeWork NSW, NSW Health, employers of workers who perform roles at NSW ports and their trade unions on the WHS risks, new WHS standards and due diligence processes and protocols to ensure risks to the health and safety of all port workers are taken into
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consideration in decision making by the harbourmaster and VTS staff in relation to ship entry to ports in circumstances where communicable diseases are prevailing; and
• Re-train all VTS staff, including management and the crisis management team, in new risk assessment and risk procedures and protocols.
Recommendation 27: That Princess Cruises Lines Ltd be the subject of an independent investigation regarding its WHS practices by a panel of WHS experts, trade union and ship owner representatives led by a non-Australian PSC Regulator such as Maritime NZ and involving the ILO, to determine if it has breached any WHS law. If so, it should recommend that SafeWork NSW or the NSW Director of Public Prosecutions initiate legal proceedings against Princess Cruises Lines Ltd.
Case study: COVID-19 on the Al Kuwait livestock carrier
The outbreak of COVID-19 infection among seafarers onboard the livestock carrier Al Kuwait that docked at Fremantle port on 22 May 2020 and the resultant transmission risk to onshore and on-water workers from onboard seafarers has again highlighted systemic work health and safety (WHS) and biosecurity failures in Australia. Once again, a shipowner has failed to ensure a safe workplace for its seafarers. Commonwealth and State agencies responsible for managing human biosecurity arrangements at an Australian port have failed to adopt fail-safe risk management strategies, nor adequately communicated with marine agencies, resulting in an avoidable transmission risk to onshore workers that has the potential for fatality to occur. This case further demonstrates weaknesses in Australia’s biosecurity management in the shipping and ports sector, and inadequate work health and safety (WHS) management on board the Al Kuwait and by the ship owner/operator, both failures leading to potential disruption in Australia’s supply chain security. The MUA remains concerned that should outbreaks of COVID-19 occur among the limited number of pilots in a port, or among waterfront workers, ports would quickly grind to a halt, forcing all trade to cease. Changes must be made to both WHS and biosecurity arrangements to avoid that situation. On 3 June 2020, the MUA understands from advice provided by the Australian Inspectorate to the ITF there were 20 seafarers who tested positive to COVID-19 from a crew complement of 48 seafarers, an infection rate on board the ship of 46 per cent (compared to the Australian rate of 0.6 per cent at 26 May 2020). The MUA understands that the ship’s master reported on 20 May 2020 some two days before the ship berthed, in the Department of Agriculture biosecurity Pre-Arrival Report (PAR), that there were three ill seafarers on board but apparently no details of the symptoms of those seafarers were in the PAR. On 22 May, the ship provided an updated report to the Department of Agriculture, which notified one crew member with a high temperature plus three showing similar symptoms in the last 15 days. The Department of Agriculture then notified the WA Department of Health, also on 22 May 2020, on the updated information received from the ship, prior to it berthing. According to media reports, which cited an email from the Department of Agriculture, it included the following advice to the WA Department of Health – “from the information received there was no
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concern of COVID-19 on the vessel”.40 It is not known what assessment the WA Department of Health, as the organisation in the biosecurity chain with human health assessment expertise, made about human biosecurity risk based on the information it received, but it appears that it assessed the ship as low risk i.e. there was no need for its officers to board the ship and undertake a health (human biosecurity) assessment. It also appears however that neither the WA Department of Health, nor the Commonwealth Department of Agriculture, notified the Fremantle Port Authority of any COVID-19 risk on board, which subsequently permitted the ship to dock, on the basis of not having advice that there were any biosecurity issues that would indicate it should not allow the ship to proceed to dock. Subsequently, Commonwealth biosecurity officers and an AMSA inspector boarded the ship, having no advice that there was COVID-19 infection on board. We are also concerned about the way that AMSA has performed its PSC responsibilities, particularly given the Ruby Princess incident almost two months previously.. We submit that given all the national and international knowledge of COVID-19 and the experiences of the cruise ship sector that AMSA should have had a heightened concern about COVID-19 risk to the health and safety of ship’s seafarers. Consequently AMSA should have been inspecting all ships entering Australian ports, particularly ships like the Al Kuwait with a large crew and no medical expertise or medical facilities on board, to satisfy itself that the requirements of the ILO MLC to provide a safe workplace for seafarers were being applied, and as part of that inspection, should have conferred with the organisations listed below and have regard to the documents listed below:
• The Kuwait Marine Transport Department within the Kuwait Ministry of Communications (the Kuwait ship registry) (notwithstanding that Kuwait is not a signatory to the ILO MLC, which places a higher obligation on AMSA to ensure the MLC provisions are being applied as required by the MLC) and in particular ensured the ship was complying with the requirements of the Kuwait Work Health and Safety Law No. 6 of 2010 concerning Labour in the Private Sector, and Decree No. 22 regarding respect for safety precautions at the workplace;
• The Seafarers Employment Agreements signed individually by each seafarer member (which incorporate seafarer collective agreements, in this case being a collective bargaining agreement (CBA) between Kuwait Livestock Transport and Trading (the ship owner/operator) and the International Transport Workers Federation (ITF) signed on its behalf by the Sindikst Pomoraca Hrvatske (Seamans Union of Croatia), to assess what the CBA requires of the employer regarding safe workplaces, in this case being: ➢ That there is a Safety and Health Committee on board; ➢ That the company has a safety-management system; ➢ Compliance with the ILO Code of Practice on Accident prevention on board ship at sea
and in port (2nd edition); ➢ That the company appoint a Safety Officer who shall implement the company’s safety
and health policy and program and carry out the instructions of the Master to: ❖ Improve the crew’s safety awareness; ❖ Investigate any safety complaints brought to her/his attention and report the same
to the Safety and Health Committee and the individual, where necessary; ❖ Investigate accidents and make the appropriate recommendations to prevent the
recurrence of such accidents; and ❖ Carry out safety and health inspections;
➢ That the crew have elected a safety representative;
40 ABC, Coronavirus outbreak on live export ship Al Kuwait docked in Fremantle as six test positive for COVID-19, 26 May 2020, https://www.abc.net.au/news/2020-05-26/coronavirus-outbreak-on-live-export-ship-al-kuwait-in-fremantle/12287006
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➢ That the crewing level must never fall below the level at which the Seafarers’ right to good health and safety is jeopardised;
• The Kuwait Livestock Transport and Trading Safety Policy;
• The Kuwait Livestock Transport and Trading Safety Management System for the Al Kuwait, required by the International Safety Management (ISM) Code made under the IMO International Convention for the Safety of Life at Sea (SOLAS) Convention and the ILO Guidelines on occupational safety and health management systems, ILO-OSH 2001 and the ISM Code;
• The ship Safety Committee, to obtain minutes of its meetings and to know if it conveyed any views to the company on COVID-19 risks and about hazard controls for COVID-19;
• Company managers (on board and onshore) with responsibility for WHS, and Safety Representatives (as described under Kuwait law [the equivalent of Health and Safety Representatives (HSRs) under Australia’s model WHS laws]) elected by the workforce or appointed by trade union party to the collective agreement;
• The ship’s officers responsible for crew health, medical facilities and supplies of hazard controls such as PPE;
• Agencies such as the Fremantle Port Authority regarding its expectations and advices to the ship and WA Department of Health as to its systems for determining health risk and advices it had provided to the ship;
• The ship’s port agent;
• COVID guidance (from various agencies such as from the ILO, IMO, as well as Australian health and WHS agencies41) applicable to the ship; and
• The trade union representatives of the seafarers i.e. the ITF or any of its seafarer affiliates. This situation demonstrates, just as occurred in the Ruby Princess case:
• That the quality of information provided by the ship’s master on the health status of seafarers is inadequate and unreliable i.e. self-assessment does not work, and that ship reporting i.e. the Maritime Approval Reporting System (MARS) must be reformed: ➢ That the quality of self-reporting is likely to be less reliable on cargo ships that do not
include any medically qualified crew on board, as is the case with the Al Kuwait, who could provide the master with accurate medically assessed health status information: ❖ And the quality of information provided by ship’s masters could be impacted by
poor quality instructions associated with PAR completion in the MARS online system, in the case of a communicable viral disease like COVID-19.
• That the WA Department of Health, charged with making the health assessment in the biosecurity chain, failed in its risk assessment process by not requiring an on-board health assessment of all seafarers on board, based on the information provided in the PAR and as updated prior to the ship berthing;
• The Department of Agriculture had no authority nor expertise to make a health assessment on the PAR information, and the WA Department of Health was derelict in its duty if it had regard to that advice and not make its own health assessment as soon as the ship docked (or ask the Fremantle Port Authority to not permit the ship to dock but to assist in getting WA Department of Health officers on board at anchorage to assess the COVID-19 health status seafarers);
41 See for example Safe Work Australia, National COVID-19 safe workplace principles, https://www.nsw.gov.au/sites/default/files/2020-05/National%20COVID-19%20safe%20workplace%20principles%20-%2024%20April.pdf
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• That the Fremantle Port Authority had in place an inadequate risk management process itself that should have required it to make its own assessment of the health status of the seafarers in determining whether to permit the ship to proceed to dock;
• There was inadequate communication protocols in place between WA state agencies; and
• That the AMSA failed to perform its PSC functions by ensuring the shipowner was in compliance with the requirements of the ILO MLC, and WHS laws applying to the employer, the ship and the seafarers.
In summary, the result was:
• That the Al Kuwait was not a safe workplace and that an outbreak of COVID-19 occurred on the ship, thus jeopardising the lives of seafarers;
• That a marine pilot under the control of the Freemantle Port Authority boarded the Al Kuwait to pilot the ship into Fremantle port without adequate knowledge of the on board COVID-19 risk, notwithstanding the hazard controls put in place by the Freemantle Port Authority for all marine pilots boarding ships within its VTS area;
• That two Commonwealth biosecurity officers and an AMSA safety inspector subsequently boarded the ship, without adequate knowledge of the on board COVID-19 risk; and
• A Mission to Seafarers driver boarded the ship, also without adequate knowledge of the on board COVID-19 risk.
This suggests that:
• The ship owner/operator, Kuwait Livestock Transport and Trading, failed in its duty of care to provide a safe workplace for seafarers onboard the Al Kuwait;
• Department of Agriculture and or Australian Border Force (ABF) and AMSA, as employers and as the PCBU, failed in their WHS duty of care to their officers who boarded the ship without being informed of the risk to their health and safety; and
• That the Fremantle Port Authority failed in its WHS duty of care to its officers who boarded the ship without being appropriately informed of the risk to their health and safety.
This case once again highlights:
• That there were inadequate COVID-19 hazard controls on board an international ship, the Al Kuwait in this case, that allowed the infection to spread quickly among the crew of 48 seafarers, once again demonstrating that the WHS arrangements and labour standards on board international ships operating from ship registries over which there is little or no international regulatory oversight of labour and WHS standards nor a compliance and enforcement mechanism, is manifestly inadequate;
• The international system of PSC by national maritime regulators like AMSA is ineffective and not interconnected;
• That international seafarers, out of sight on the high seas are treated indifferently by ship owners and operators, and that seafarer welfare is not given adequate attention, supporting the long-held contention of the ITF and its seafarer labour union affiliates that international seafaring remains a place of significant worker exploitation;
• The inadequacy of self-reporting arrangements by ship’s masters to the Department of Agriculture in the biosecurity Pre-Arrival Report (PAR) as part of the Maritime Arrivals Reporting System (MARS) in relation to human biosecurity regarding on board seafarers. It appears to the MUA that shipowners/operators/masters are seeking to avoid the risk of potential delays in port and subsequent financial losses by not accurately self-declaring health issues, thereby putting Australian maritime workers, their families, and the broader Australian community at risk of COVID-19 infection;
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• The poor risk management practices, including a lack of interagency communication protocols in the COVID-19 pandemic environment exhibited by the WA Department of Health and the Freemantle Port Authority; and
• The low-key role that WorkSafe WA played on relation to the WHS of onshore and on-water workers at the international shipping interface with Australia.
It is important in our view to emphasise that ensuring ships as workplaces are safe, is central to the human biosecurity effort as biosecurity arrangements are an after-the-event risk management strategy. If ships as workplaces are safe and free from disease and illness, the less chance of communicable diseases breaching the biosecurity barrier at the Australian border.
Failures by the flag state and employer
The Al Kuwait is a livestock carrier ship registered in Kuwait by the Marine Transport Department within the Kuwait Ministry of Communications. The ship is owned and operated by Kuwait Livestock Transport and Trading a public company part owned by the Government of Kuwait through the shareholding of the Kuwait Investment Authority. The 48 seafarers on board comprise Croatian officers and Filipino, Indian and Australian crew. The ship was due to transport 56,000 live sheep to the Middle East, prior to the live animal curfew which commences on 1 June each year (coinciding with the northern summer, a time period not considered appropriate for live animal transportation by Australia). The ship operator, Kuwait Livestock Transport and Trading, arranged for engagement of the seafarers for the ship. The Seamans Union of Croatia signed an ITF Special Agreement with Kuwait Livestock Transport and Trading incorporating the ITF Uniform Total Crew Cost (TCC) Collective Bargaining Agreement (CBA). The seafarers have all signed a Seafarer Employment Agreement (SEA) incorporating the ITF TCC CBA/Special Agreement. Kuwait Livestock Transport and Trading is therefore, to the best of our knowledge, the employer of seafarers aboard the Al Kuwait and we understand is therefore bound by the Kuwait Work Health and Safety Law No. 6 of 2010 concerning Labour in the Private Sector, and Decree No. 22 regarding respect for safety precautions at the workplace42, which, inter alia, specifies that:
• The employer shall take all the needed precautionary safety measures for securing the safety of his workers, machinery, equipment, and the circulated materials in the firm and the persons utilizing these materials against the work hazards.
• The employer shall keep in the workplace records of the routine medical checks for operators who are exposed to health hazards.
• The employer shall provide the required safety and occupational health instruments and kits.
• The employer shall take the necessary precautionary measures for protecting workers against health hazards and occupational diseases resulting from the practice of such work, and shall further provide the necessary first aid kit and medical services.
• The employer shall explain to the worker before commencing work of the risks involved and the precautionary requirements.
• Every employer must keep occupational safety records according to specific forms, rules and regulations.
42 International Labour Organisation (ILO), Global Database on Occupational Safety and Health Legislation (LEGOSH), Kuwait, https://www.ilo.org/dyn/legosh/en/f?p=14100:1100:0::NO::P1100_ISO_CODE3,P1100_SUBCODE_CODE,P1100_YEAR:KWT,,2013
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• The employer shall prepare and keep records of: ➢ Sick leave. ➢ Injured workers. ➢ Occupational diseases. ➢ Routine medical examinations of workers who are exposed to occupational diseases.
Kuwait is not a signatory to the ILO Maritime Labour Convention, though it is a signatory to the ILO core Labour Conventions. Kuwait is nevertheless a signatory to the ILO Occupational Safety and Health Convention, 1981 (No. 155) and Protocol of 2002 to the Occupational Safety and Health Convention, 1981.
The role of the shipper of the livestock and the WA Government
We are concerned that the shipper of the livestock, Rural Export and Trading (WA), that we understand was responsible for arranging for purchase of the sheep to be loaded onto the Al Kuwait did not undertake an adequate due diligence process when chartering the ship for this shipment of livestock, and should not have chartered a ship registered in a nation where that nation has not ratified the ILO MLC. Alternatively, it should have ensured that the ship owner/operator signed an addendum to the charter party contract requiring the shipowner/operator to comply with the MLC (as given effect by AMSA Marine Order 11 [Living and working conditions on vessels]) and nominated AMSA as the PSC regulator for compliance purposes. It is our view that the WA Government should also take a closer interest in the labour arrangements for ships that trade with Western Australia and put in place a process to lift the labour and WHS standards on ships which wish to trade through WA ports. This could be progressed in one of two ways:
• The ports Minister could utilise Division 4 (Ministerial directions, general provisions) under the WA Port Authorities Act 1999 to require port authorities to introduce new conditions for ships entering WA ports to which the Port Authorities Act applies that requires those ships to meet specified labour and safety standards; and or
• The WA laws specifying the powers of harbourmasters could be amended to provide new powers to harbourmasters to require ships that wish to enter the VTS areas of harbourmasters to be compliant with specified labour and WHS standards.
It is the view of the MUA that such actions would be entirely consistent with Australia’s obligations under the Safety of Life at Sea (SOLAS) Convention to which Australia is a signatory. Recommendation 28: That the Prime Minister write to the head of the Kuwait Government advising that Australia expects the Kuwait Government to ratify the ILO Maritime Labour Convention (MLC) if it wishes to continue to undertake maritime trade with Australia. Recommendation 29: That AMSA write, after consulting with the MUA and ITF, to its counterpart PSC regulator in Kuwait and to the ship owner/operator and employer, Kuwait Livestock Transport and Trading, recommending improvements to WHS and labour practices on Kuwait registered ships that trade with Australia. Recommendation 30: That the WA Government confer with all entities involved in the live animal export trade in WA to advise WA Government expectations in relation to labour and WHS standards applying to ships chartered for the live animal trade from WA ports, and one of those expectations be that the nation in which the ship for that trade is chartered, has ratified the ILO MLC and has in place appropriate WHS and labour standards in all elements of the live animal supply chain.
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Recommendation 31: That the WA Government, after conferring with the maritime unions, the ITF, AMSA and WA state marine and port authorities that have harbourmaster functions, develop WHS and labour standards conditions for all international ships that wish to trade through WA ports, and for the WA Government to identify the most effective legislative mechanism to ensure those new conditions are introduced and enforced.
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Addressing WHS and labour rights issues on international ships operating in Australia
The extent of systemic failure of ship regulation, WHS regulation applying to international seafarers and application of the rights of seafarers deriving from international Conventions like the ILO MLC to which Australia and other nations involved in ship regulation are signatories, highlighted in the case of both the cruise and cargo ship sectors during the COVID-19 pandemic, indicates that both national and global solutions are required to address these systemic failures. The hostage of seafarers on international cruise vessels during the COVID pandemic, arising from the decisions of Governments to restrict entry of cruise ships to ports and to force to sea cruise ships that have no corporate or employment connection to the nations and their ports on the itineraries of such cruise ships, including Australia, points in our view to a serious case of modern slavery. In our view it will be necessary for the cruise sector to rebuild and sustain its social licence to operate in Australia if the cruise industry is to regain the confidence of its workforce, its consumers and Governments. Internationally, the stranding of seafarers aboard both cruise and cargo ships by government restrictions on travel and borders, which are preventing seafarers from being relieved by fresh crews, is putting tremendous strain on seafarers’ mental and physical health. Fatigue, isolation, anxiety and depression is affecting a large number of these seafarers. The MUA and the ITF are concerned about seafarer wellbeing, and we suspect there has been a rise in suicides, with a number of prominent cases in recent weeks related to the growing desperation of crew. The MUA and ITF are concerned about the health and safety and environmental risks associated with an increasingly fatigued crew. This issue also has dangers for global trade. Maritime regulatory authorities have the ability to refuse entry to port or to detain vessels that are in breach of maritime standards, including maximum time at sea for seafarers. Regulatory authorities that consider these stranded vessels as posing an undue risk may start taking these actions, causing financing and insurance issues for shipowners, thus impacting on global trade, dealing a blow to supply chain security. There must be much better international arrangements in place to address these issues in a structured way which ensures that cargo and passenger ships are safe, that cargo can continue to be transported and that ships are safe workplaces. We believe that protocols must be in place to ensure that during human biosecurity events:
• Seafarers can get ashore for medical treatment;
• Seafarers are permitted to pass through their territory to facilitate a crew change (including through ports and airports);
• Seafarers are permitted to be repatriated to their nation of origin;
• Seafarers be exempt from restrictions that would prevent them from returning in a practical way to their homes or travelling to relieve another crew; and
• Seafarers be recognised as ‘key workers’ providing an essential service (and afford them the accompanying rights and support key workers are entitled to in those countries, such as health workers).
Recommendation 32: The Australian government must take action facilitate crew changes for all crew on ships in Australian ports, particularly where crew have worked beyond the maximum time prescribed by the Maritime Labour Convention and contractually codified in each seafarer employment agreement.
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Seafarer welfare and communication
A critically important welfare issue faced by seafarers while at sea, particularly in situations when a potentially deadly viral pandemic is on foot is not being able to communicate with home and family. A significant proportion of seafarers on international ships have very limited or no access to Wi-Fi, such an essential technological aide to communication with family and friends. The lengthy periods of seafarer employment agreements, with limited opportunity for shore leave due to the short turnaround time of ships in ports in normal circumstances, now exacerbated by COVID-19 restrictions means seafarers are unable to maintain regular communication with home and miss many of the important occasions with their loved ones. Numerous international reports indicate this isolation can be very damaging for mental health, particularly when seafarers are away from their families on a regular basis. Researchers have found that a lack of internet access, long periods away from home, poor accommodation and poor food quality were a concern for those working at sea. A 2019 mental health study of 1,572 seafarers found that 20% of those surveyed had thought about suicide or self-harm in the two weeks before the study.43 In another 2019 Seafarers Mental Health and Wellbeing study, Cardiff University researchers specifically recommended that, “free and unlimited internet should be made available to all seafarers on board all cargo vessels.” Internet access should be offered to seafarers to improve their mental health according to this study.44 The current COVID-19 pandemic has significantly increased these negative elements to seafarer’s mental health as travel restrictions have made crew changes increasingly difficult, extending their time in isolation on their ships. Seafarers are now spending extended periods on board ships, over 12 months in some cases, with no ability for shore leave, limiting the ability to access communication technology. This needs to be addressed as an outcome from the COVID-19 pandemic. Recommendation 33: That the Australian Government recognise the significant increase in the social isolation to seafarers on ships servicing Australian ports arising from the COVID19 pandemic and the impact this isolation is having on the mental wellbeing of the seafarers. Recommendation 34: That the Australian Government allocate funding for the provision of Wi-Fi access for seafarers on ships on the Australian coastline as well as those at berth in Australian ports to improve their communication access and reduce the incidence of metal health issues among seafarers.
A pathway to global reform of international shipping
Seafarers on international ships while in Australian waters and the waters of some other advanced nations were denied the right to a safe workplace as we have demonstrated in this submission, but were also denied rights to adequate medical care on board and to onshore medical facilities. They
43 Rozanov, Vsevolod, Mental health problems and suicide in the younger generation — implications for prevention in the Navy and merchant fleet, International Maritime Health Journal, Vol 71, No 1 (2020), https://journals.viamedica.pl/international_maritime_health/article/view/66040 44 BBC, Seafarers' mental health studied by Cardiff University, 6 November 2019, https://www.bbc.com/news/uk-wales-50315080#:~:text=Internet%20access%20should%20be%20offered,for%20those%20working%20at%20sea.
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were also denied the right to legal representation in relation to a criminal investigation being undertaken by the NSW Police Force. Importantly, seafarers were denied all rights to representation by trade unions, which were refused access to ships and to seafarers. The denial of such rights is contrary to the rights of all workers to labour union representation under the core ILO Labour Conventions, to which Australia is a signatory. The MUA submits that as a nation which is committed to an international rules based system for addressing global problems and which remains committed to the United Nations frameworks for resolution of issues arising from national commitments to treaties and other multi-lateral agreements, Australia, as a major cruise and cargo destination and as a nation in which some cruise lines choose to “home port” their ships, incentivised by State Government support, should become active in relevant international forums to seek both global and domestic solutions to the serious failings outlined in this submission. The issues in international shipping go much deeper than ship safety and seafarer WHS. They go to labour standards and international minimum wages for seafarers, lack of pension funds for international seafarers and many other labour conditions that are standard practice for onshore workforces, but not available to international seafarers. To commence a national discussion and to commerce framing solutions to these matters of significant national importance, the MUA submits that the Department of Foreign Affairs and Trade, as the Commonwealth agency with responsibility for advancing human rights globally and the agency with key responsibility for Australia’s linkages to the United Nations, be tasked with leading and coordinating a national stakeholder discussion (task force) aimed at developing solutions and proposals for injecting into the relevant international fora on which Australia is represented, like the ILO and IMO. This process needs to involve the policy departments overseeing ship safety, the Department of Infrastructure, Transport, Regional Development and Communications, the Department overseeing labour relations and WHS, the Attorney General’s Department, the agency responsible for modern slavery, the Department of Home Affairs and relevant statutory agencies such as AMSA and Safe Work Australia, along with the employer organisation MIAL, and seafarer representative organisations, the MUA and ITF. It is our submission that such a task force be charged with developing an Australian initiative in the ILO aimed at securing international support for a package of reforms to international shipping that builds on the ILO MLC of 2006, adopted some 14 years ago. We believe it is time for new international standards to be developed, that might require a new Convention or significant amendment to the ILO MLC to provide, inter alia, for a new international seafarer labour standards and WHS compliance and enforcement regime that would establish a series of domestically based, but internationally connected international shipping tribunals to enable the weaknesses in international shipping regulation to be systematically addressed in key shipping regions like North America, Europe/UK, Latin America, Africa, Asia and Australia/Oceania. Domestically, we believe Australia should take the lead by establishing the forerunner to the international shipping tribunal concept we propose by establishing an International Shipping Commission.
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Recommendation 35: That in order to develop new mechanisms for identification and enforcement of WHS and labour standards on international ships trading with Australia to spearhead international ship regulatory reform, the Department of Foreign Affairs and Trade, as the Commonwealth agency with responsibility for advancing human rights globally and as the agency with key responsibility for Australia’s role within the United Nations, be tasked with:
• Leading and coordinating a national stakeholder discussion aimed at developing solutions and proposals for injecting into the relevant international fora on which Australia is represented, like the ILO and IMO aimed at framing long term solutions to systemic failure of international ship regulation; and
• Considering modern slavery risk, WHS regulation and labour standards applying to international seafarers and better ways to enforce the rights of seafarers deriving from international Conventions like the ILO MLC and the core ILO Labour Conventions to which Australia and other nations involved in ship regulation are signatories, where failures have been highlighted in the case of the cruise and cargo ship sectors of international shipping during the COVID-19 pandemic, and that the stakeholders to be involved include: ➢ The policy departments overseeing ship safety, the Department of Infrastructure,
Transport, Regional Development and Communications, the Department overseeing labour relations and WHS, the Attorney General’s Department, the agency responsible for compliance with the Modern Slavery Act 2018, the Department of Home Affairs and relevant statutory agencies such as AMSA and Safe Work Australia, along with the employer organisation MIAL, and seafarer representative organisations the MUA and ITF.
Recommendation 36: That one key initiative to be developed through the stakeholder discussion is an Australian initiative for consideration by the ILO aimed at securing international support for a set of reforms to international shipping regulation that builds on the ILO MLC of 2006 by requiring a new Convention or significant amendment to the ILO MLC. The aim of a new of amended Convention is to:
• Establish new international seafarer labour standards including a minimum wage and retirement benefits; and
• Establish a new international shipping labour and WHS compliance and enforcement regime that might for example, establish a series of domestically based international shipping tribunals to enable the weaknesses in international shipping to be systematically addressed by such a network of interconnected shipping tribunals in key shipping regions like North America, Europe/UK, Latin America, Africa, Asia and Australia/Oceania.
Establishing an International Shipping Commission in Australia
The purpose of an International Shipping Commission is to provide a national framework to coordinate the operation and regulation of international shipping in Australia aimed at ensuring that Australia maximises the economic and social benefits from international shipping, a vital component of Australia’s economic security and supply chain resilience. It could grow from the Maritime Response Group established by the Commonwealth Department of Infrastructure, Transport, Regional Development and Communications, though would need to include additional agencies such as labour and industrial relations, WHS and modern slavery agencies. The Commission would also be responsible for ensuring there is an appropriate interface and clearly defined responsibilities with and between the many agencies that have oversight of Australian laws impacting on international shipping.
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The commission would be responsible for coordinating and ensuring the efficient operation and interaction of each or the Commonwealth and State/NT agencies and the key stakeholders that interface with international shipping in Australia, covering:
• Ship safety, including pollution and biosecurity (derived from IMO and ILO Conventions);
• WHS and welfare of seafarers (derived from ILO Conventions) and including the interface with public health and human biosecurity laws;
• Labour standards and modern slavery, including protocols for repatriation and crew changes (derived from the ILO Core Labour Conventions);
• Seafarer rights including representational and access rights (derived from ILO and IMO Conventions);
• Border security, customs, immigration, taxation and crimes at sea; and
• Interface with domestic shipping and ports. It is our submission that there are a number of immediate tasks for the Commission:
• To review and report on the ways that the failures of the WHS system and associated regulatory arrangements could be reformed and made fit for purpose;
• To develop protocols to address the stranding of seafarers aboard international ships in circumstances where governments place restrictions on travel and borders, which are preventing seafarers from being relieved by fresh crews; and
• To identify ways that seafarers can be appropriately represented and accessed by industrial and welfare organisations whilst in Australian waters.
We propose that within the international shipping commission framework, Codes of Conduct be developed by relevant stakeholders in each of the key subsectors of international shipping that interfaces with Australia – cruise shipping, cargo shipping and offshore energy shipping. The Codes of Conduct could establish principles and mechanisms for addressing the full spectrum of labour, WHS, modern slavery, biosecurity protocols, employment, training and qualification issues as well as agency coordination and compliance and enforcement issues. Recommendation 37: That the Australian Government, in cooperation with the States/NT, establish an ongoing international shipping commission with the involvement of all relevant stakeholders, the purpose of which is to:
• Provide a national framework to ensure that Australia maximises the economic and social benefits from international shipping;
• Set and review minimum standards for the cruise sector to re-establish a social licence to operate in Australia;
• Develop and promulgate Codes of Conduct on the advice of relevant stakeholders in each of the key subsectors sectors of international shipping in Australia – cruise shipping, cargo shipping and offshore energy shipping. The Codes of Conduct be designed to establish principles and mechanisms for addressing the full spectrum of labour, WHS, biosecurity protocols, employment, training and qualification issues as well as agency coordination and compliance and enforcement arrangements.
• Develop protocols, in conjunction with international labour and maritime organisations, to address the stranding of seafarers aboard international ships trading with Australia in circumstances where government restrictions on travel and borders prevent seafarers from being relieved by fresh crews;
• Ensure clearly defined responsibilities and the efficient operation and interaction of each or the Commonwealth and State/NT agencies and the key stakeholders that interface with international shipping in Australia, covering:
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o Ship safety, including pollution and biosecurity (derived from IMO and ILO Conventions);
o WHS and welfare of seafarers (derived from ILO Conventions) and including the interface with public health and human biosecurity laws;
o Labour standards and modern slavery (derived from the ILO Core Labour Conventions);
o Seafarer rights including representational and access rights (derived from ILO and IMO Conventions);
o Border security, customs, immigration, taxation and crimes at sea; and o Interface with domestic shipping and ports.
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Annex A: Work rosters in the oil and gas industry during the COVID-19 pandemic
The lives of workers and their families in the offshore oil and gas industry have been upended, meanwhile, production has continued without interruption. We are concerned that the underlying cost is a mental health crisis in the industry. Rapid and far-reaching changes that have been made to workers’ conditions, most implemented not only without consultation, but without workers even being provided with clear information about what is being asked of them. In this context, the safety alert issued by NOPSEMA on 7 April was very welcome, as is the updated guidance on industry preparedness and better practices for managing risk of COVID-19 on offshore facilities, which includes guidance on rosters and quarantine conditions. We appreciate NOPSEMA’s commitment to using inspections to “to ensure that facility operators are utilising appropriate workforce consultation, risk assessment, and management of change processes” (NOPSEMA, COVID-19 roster changes: Safety Alert, 7 April, p.1). We also appreciate the Industry Forum that NOPSEMA has been convening with the relevant offshore unions. We set out below complaints we have received from workers in relation to the expectations set out by NOPSEMA in the safety alert. For context, it should be understood that current rosters for oil and gas production workers (until very recently) were:
For directly employed workers: - 3 weeks on, 4 weeks off, 3 weeks on, 5 weeks off (Shell, Inpex, Jadestone)
- 3 weeks on, 3 weeks off, 3 weeks on, 6 weeks off (BHP)
- 2 weeks on, 2 weeks off, 2 weeks on, 4 weeks off (Chevron, Woodside, Santos, Vermillion) For contractors: 2 weeks on, 2 weeks off or 3 weeks on, 3 weeks off
The importance of rosters in workers’ lives cannot be overstated. Families have their whole lives organised around these rosters. Work offshore is very high intensity, with workers working long hours under significant pressure. Significant travel time is also involved. The existing level of breaks is absolutely necessary to combat fatigue and allow workers adequate time with their families. NOPSEMA has outlined its expectation that for roster changes:
“risk assessments for fatigue and psychosocial hazards are undertaken, comprehensive, and involve extensive workforce consultation. Changes to rosters should be managed, and documented, through established Management of Change processes, and this would be expected to include appropriate workforce consultation.” (NOPSEMA, COVID-19 roster changes: Safety Alert, 7 April, p.2)
Threats not consultation Far from ‘appropriate workforce consultation’ many workers described being telephoned at home and being asked to cut short their scheduled off-swing to return to quarantine in WA with only hours or days of notice. INPEX asked workers to relocate themselves or their whole families to WA.
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Workers described their future employment being threatened if they did not agree to get on flights at short notice:
“It was explained…that if I did not make this flight, I would be considered unavailable for the alternative roster and on the completion of my off duty period I would be given 2 weeks of work from home at normal rates of pay then I would have to go onto “leave without pay” if I did not have leave entitlements to draw on.” After arriving in WA, “Eastern state employees were given a verbal briefing…which gave me the impression if I wasn’t prepared to relocate ‘I may as well pack my bags and go home,’ I would then receive 2 weeks of paid work minus my offshore allowance then proceed to leave without pay.” (worker on an INPEX facility, correspondence to INPEX on 13 April)
A worker at an onshore facility was similarly asked to get on a plane a week before their offswing ended with only a few days’ notice. When the worker responded that would conflict with the plans they had for the remainder of their off-swing (plans which the worker had I already changed to accommodate company requests for self-isolation at home), they were told by the company “’that a plane ticket will be purchased for you by the company and if you choose to not be there, it's too early to make a comment about what your employment status after that point in time would be'. A clear threat that either; I am there or no longer have a job” (Worker on an onshore facility correspondence to the Offshore Alliance, 10 April). A worker at the Vermilion Energy Wandoo platform was told to shift from a 2/2 roster to a 6/2 roster (including quarantine time). They said that “In regard to the roster changes, the HSRs have not really been engaged, there is no fatigue management strategy”. Workers who raised concerns were told by high-level management to “harden up” (Worker on Vermilion Energy Wandoo platform, correspondence to the Offshore Alliance, 6 April). A worker at the Shell Prelude facility describes the how leadership team “downplay and disregard the people that make the magic happen. We have been mismanaged, bullied to work outside the safety case and ignored” (Worker on Shell Prelude facility, correspondence to the Offshore Alliance, 2 April). A worker for INPEX forwarded a letter they received from the company saying, “You have previously indicated that you will work this Interim roster”. The worker says that “The roster was released when I arrived in Perth. Never have I agreed to anything” (worker on an INPEX facility, correspondence to the Offshore Alliance on 9 April). Lack of information to the workforce Workers at INPEX were only given the details of the new “alternative roster” more than one week after leaving their homes and families and while in quarantine in WA. These details did not include important information for workers such as how their Offshore Allowance would be calculated or how overcycle rates would apply to quarantine time. One INPEX worker was flown to WA on 32 hours’ notice, but on arrival in WA was informed that their roster had been changed and they had to wait over 1 week, unpaid, before they could start work. Despite having a young child and a partner needing support, INPEX refused to fly the worker back home for this unpaid period (Worker at an INPEX facility, Correspondence to NOPSEMA, 8 April). The worker at an onshore facility whose employment was threatened if he did not get on a plane early was not given any information in writing about changes to terms and conditions. After being
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told to get on the plane or else, the worker still had “literally no info about what the roster would be” (Worker at an onshore facility, correspondence to the Offshore Alliance, 10 April). Shell required some workers to travel to WA to complete the quarantine without being told that the quarantine period would be unpaid (as advised at the time - Worker on Shell Prelude facility correspondence to the Offshore Alliance, 2 April). A worker at Chevron’s Wheatstone facility reported receiving 4 different roster changes by email, without any consultation:
I only received the information because a member of a different team forwarded it onto me. It is very clear that the communication is not reaching everyone it needs to, or within a timely manner. I received an email a day after it was sent and with feedback required within the next day, this does not leave adequate time to formally respond. Some people never received an email. I did not receive any formal written communication regarding the 3:3 proposal or the 12-week proposal and was not informed of the 4:4 roster at all before it was already in force. In such highly stressful times for employees and families, Chevron should reconsider how they keep in touch with their employees to ensure they feel well connected and consulted by the company. (Worker at a Chevron facility, correspondence to NOPSEMA, 10 April).
Changes to conditions without compensation Many companies are not providing any additional compensation for extending the time that workers must be offshore from 2-3 weeks to 4 weeks Conditions of quarantine Workers on the Shell Prelude platform were being quarantined for 2 weeks, without pay (at the time), in rooms with no access to the sun and windows that opened only a few inches (Worker on Shell Prelude facility correspondence to the Offshore Alliance, 8 April). After living like this for two weeks, they were then required to travel to work offshore. An employee working for an INPEX contractor reported the following: “I can't speak for others but personally my room is very small and I only have a window to look out, I am a little concerned about my physical and mental health if we are to be here for more than 14 days without getting some sun and fresh air. Will this be available to us? Is it possible to have a room that will accomodate at least some fresh air? (Worker at an INPEX facility, correspondence to Offshore Alliance, 14 April). Health measures Workers on the Shell Prelude facility expressed concerns about being required to share cabins (Worker on Shell Prelude facility correspondence to the Offshore Alliance, 8 April).
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Workers on Barrow Island report that they are being considered clear of COVID-19 if they pass a temperature test and a questionnaire and are not aware of any testing for COVID-19 or procedures for dealing with suspected cases (Worker at a Chevron facility, correspondence to NOPSEMA, 10 April). Fatigue We believe workers are highly fatigued at the moments, due to:
- Communicating and supporting stressed family members, dealing with uncertainty at work, caring for elderly relatives and children home from school
- Workers being required to cut short off-swing time to travel to WA on short notice
- Workers trying to discuss all these matters with family members, while working with insufficient information from the company.
- Workers being sent to alternative locations without any explanation
- As a result of these changes, one worker described they would be home for only 11 days out of 10 weeks.
Many companies have shifted to having workers offshore for 4 weeks, working daily 12-hour shifts. A worker at a Chevron facility explained that:
“No allowances are being made for employees working 4 weeks straight? The standard model elsewhere is to include a day off after 14 days of work. Over 14 days straight of 12-hour shifts will produce high levels of fatigue and increase the risk of accidents”. (Worker at a Chevron facility, correspondence to NOPSEMA, 10 April).
Another worker at Chevron explained:
Two weeks isolation is a big ask that we all except, but my concern is the guys sitting isolated without any contact with family and friends then going offshore for 4 weeks working 12 hours a day 7 days a week. As you are well aware, our down time after shift offshore looks a lot different to the Wheatstone Downstream Plant where they leave site, go back to camp, put their feet up, have a beer and unwind, totally removed from work. We are woken every day on night shift whilst sleeping whilst helos are landing, we have ERT muster drills each week, we have town halls almost every day, the list goes on............ Fatigue goes up, moral and concentration goes down. ….I was due to go on a 4-week break but due to the new 4 and 4 roster….I will be returning to WA (quarantine) after 12 days (not 28 days). There are a lot of guys in the same position as me (Worker at a Chevron facility, correspondence to the Offshore Alliance, 5 April).
Psychosocial hazards NOPSEMA has said that: Assessment of psychosocial hazards should include consideration of a broad range of factors, for example:
• pre-existing or previous psychological injury
• the effects of extended absence from family during a pandemic
• the heightened risk of psychosocial harm during periods of pre-mobilisation isolation. (NOPSEMA, COVID-19 roster changes: Safety Alert, 7 April, p.1).
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The effect has been significant, as a ‘peer supporter’ explains:
“The way in which Inpex has conducted itself in the past 2 weeks whilst employees have been in quarantine / isolation has only added to employees’ anguish and mental stress. As a “peer supporter” I have been inundated with phone calls from fellow employees across both offshore facilities requesting reassurance and compassion to their current predicament (not everybody is comfortable using the EAP), which in my opinion seems to be unwarranted due to the fact FIFO workers have an exemption to travel between states, as long as quarantine measures are adhered to. “It is possible or evenly highly probable that employees are going to return to work mentally drained.” (worker on an INPEX facility, correspondence to INPEX on 13 April)
Oil and gas companies are also shirking their duties to workers for companies they contract to work on their facilities. An elected HSR described how they “tried with the other HSR’s to raise Mental Health issues in conference calls with all Assets... During which Woodside have just shrugged their shoulders and only focused on Woodside employees. It was a joke!” (Worker for a company contracted to Woodside, correspondence to the Offshore Alliance, 16 April 2020). A worker on the Shell Prelude facility described being told they were going to shift to the 6/2 roster despite having a young child to care for (Worker on Shell Prelude facility correspondence to the Offshore Alliance, 9 April). Another worker with a child with serious health problems expressed concern about the impact of the 6/2 roster on their family and ability to get home in case of a family emergency (Worker on Shell Prelude facility correspondence to the Offshore Alliance, 11 April). A worker at a Chevron facility reported that:
“Some families are uprooting to Perth which means loss of wages for the partner, children out of schools and huge stress of being away from their families. Some families will not be able to relocate as their partners are essential employees in their home states or have carers responsibilities for elderly relatives. These families are left with the prospect of having partners away for months, with no fixed end date.” (Worker at a Chevron facility, correspondence to NOPSEMA, 10 April).
A worker from INPEX who had been told to move their family to WA while away from home wrote to the company explaining:
I feel the company has been unfair and unjust in forcing individuals into a position of choosing between their family in this time of crisis (agreeing to six months away from our families) and continued financial stability (if you don’t move you will be stood down on leave with no pay). This was particularly unfair in my circumstances as I was unaware of this scenario before I left my home and have had to deal with the stresses of such a decision whilst being in company created isolation in Broome. At no point in this process has INPEX been transparent or forthcoming with details which has added to the stressfulness of the situation. … The undue stress and hardship you are now placing on your workers and their families will, without doubt, lead to health and financial issues as well as the breakdown of family units (Worker at an INPEX facility, Correspondence to INPEX, 8 April)
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Conclusion We would like to leave the final word to an offshore worker:
Woodside are ruthless and need to see that being given a license to extract Oil and Gas comes with a moral [duty] to Australia. It’s a privilege they have the license, not a personal money-making machine. The gas belongs to each of us and our children and their children (Worker for a company contracted to Woodside, correspondence to the Offshore Alliance, 16 April 2020).
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All recommendations
Recommendation 1: That the Select Committee should inquire into:
• The risks of workplace transmission of COVID-19 and how employers, the WHS framework and WHS regulators are managing this risk
• The implementation of JobKeeper and its effect across various industries
• The failure of Australian agencies responsible for safety and WHS in international shipping, and how this has undermined Australia’s human biosecurity effort and led to the terrible situation of ships’ crew being stranded on international ships carrying Australian imports and exports.
Recommendation 2: Recognise that workplaces are sites of particular risk for COVID transmission, as sites of large and ongoing congregation of people who are usually not free to be able to follow public health advice without the consent of their employer. For many employers, following public health advice will increase their operational costs, which means that many employers have been reluctant to follow public health advice and/or have penalised workers and Health and Safety Representatives who have attempted to implement such measures. Recommendation 3: That clearer mandatory WHS standards must be implemented, and WHS Acts amended to give more rights to workers, Health and Safety Representatives, and unions to compel changes to systems of work to ensure safety. The current test for workers’ rights to cease work (‘imminent or immediate exposure to a hazard’) must be strengthened as it has not worked during the pandemic. The current WHS framework is not strong enough to force reluctant employers to act without workers being penalised in the process as it does not account for the current imbalance of power between employers and workers. This imbalance will worsen as the economic crisis worsens and many workers face the threat of job losses. Recommendation 4: A new regulation should be put in place under the WHS Act that is triggered in case of a pandemic being declared. The regulation should make clear how the concept of the hierarchy of controls of risk is to be applied to manage the risk of infectious disease in the workplace. This should include:
• Compulsory notification of the employer, regulator, health and safety committee and union of any case of the disease in the workplace.
• Full involvement of the health and safety committee and union in the identification of close contacts that must be isolated and tested, including contacts made during the 48 hours prior to symptoms developing.
• All close contacts to be isolated for 14 days on pay.
• Systems of work to be redesigned to allow for physical distancing (between shifts of workers, different groups of workers, in the use of shared machinery and during break times), increased cleaning in workplaces, and access to hygiene facilities and proper PPE.
• In case of a positive test, workplace to fully shut for to allow for deep cleaning to the standards of Australian Health Protection Principal Committee. All workers should be tested and receive their test results before returning to work.
Recommendation 5: Amend the National Employment Standards in the Fair Work Act 2009 to provide paid pandemic leave for any worker while they are waiting for test results or isolating, or in need of rehabilitation. Workers at higher medical risk must also be able to access additional paid leave on medical advice.
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Recommendation 6: Roll back all anti-union and anti-worker legislation in recognition of the key role played by unions in addressing the spread of COVID-19 in workplaces and in the community. Recommendation 7: That the Australian Government conduct an independent inquiry into:
• The deficiencies in WHS processes and in the application of COVID-19 public health advice in workplace settings that allowed COVID-19 to spread and cause outbreaks in a number of workplaces.
• The efficacy and interaction of the COVID-19 public health advice and WHS law in Australia, and in particular whether the scientifically determined standards-based foundation of health advices is a suitable model for application to all hazards across all WHS law in Australia.
• The reasons why WHS regulators exhibited a lack of initiative in enforcing public health law and WHS law in the workplace during the COVID-19 pandemic.
• How the WHS framework must be changed to ensure future workplace outbreaks are prevented.
• Ways to ensure that the application of the Federal Biosecurity Act 2015 and State/Territory public health laws do not impede the operation of WHS laws or regulators for certain groups of workers – particularly workers on international ships in Australian ports.
Recommendation 8: Where new swing and leave arrangements adopted during the COVID-19 border restrictions have increased stress and fatigue, WHS regulators should assist workers and unions in ensuring that all employers return to normal rosters as soon as border restrictions are lifted. Risks of COVID-19 should instead be managed through testing, physical distancing, and hygiene measures. Recommendation 9: Individual workers required to spend time in isolation in order to carry out their work must be paid for this time. Recommendation 10: Measures should be put in place to facilitate making enterprise agreements with unions to cover workplaces where no agreement exists, as having a union agreement in place has significantly benefited workers dealing with the turmoil of COVID-19 travel and health restrictions. Recommendation 11: Jobkeeper should be extended until the end of 2020, and expanded to cover all employers and their workforce, including:
• All workers with a reasonable expectation of ongoing employment as at March 1.
• Workers on visas
• Workers employed by Government Business Enterprises, local government, and at universities
• Workers employed by companies owned by sovereign entities (such as Dnata) Recommendation 12: Employers should not be able to make redundancies while receiving JobKeeper subsidies, as is currently the case. Recommendation 13: Measures must be taken to ensure employees receive the whole of the JobKeeper subsidy during the allocated time period, and employers cannot require employees to pay back any portion of the subsidy either in wages or in hours worked at a later date. Recommendation 14: The ‘Jobkeeper enabling directions’ should not be able to override union agreements, and should be removed. The request that employers can make to have workers use annual leave while receiving JobKeeper payments should also be removed.
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Recommendation 15: Acknowledge that the COVID-19 pandemic has highlighted the importance of supply chain resilience and that ships and the ports they use are a critical component of the supply chains necessary to build and maintain supply chain resilience. Recommendation 16: Recommend that the Transport and Infrastructure Council establish a standing committee that involves representatives of industry stakeholders and trade unions representing the workforce, including WHS expertise to address ways to improve Commonwealth and State/NT coordination of supply chain functionality in pandemic or other emergency situations that considers and provides guidance on matters such as:
• A consistent approach to the health protections and protocols for workers in essential maritime services such as ports and port services, and ships, including cargo ships, offshore oil and gas ships, passenger ferries, harbour towage, pilotage, mooring ships, bunkering ships and cruise ships, based on the best available advice from the ILO, IMO and WHO, supported by Australian experience gained during the pandemic.
• A consistent approach to operator responsibilities in the event that one or more workers in a port or shipping workplace contracts a communicable disease, that address worker health and safety (e.g. procedures for shift and crew changes) and equipment/workplace clean-ups and safety to ensure that maritime workplaces are safe for remaining and replacement workers.
• A template ports and shipping assistance package, based on the key worker status of port and shipping workforces, that supports port and ship operators who experience a business downturn due to lower volumes of throughput being handled through Australian ports and who are incurring additional costs to keep workforces and workplaces safe, and such workforces in employment, so that the port gateways can continue to ensure the nation is supplied with essential goods such as food, fuel and medical supplies; and
• A strengthening of Commonwealth and state/NT regulatory and taxation/fees and charges arrangements to ensure that Australian businesses and their workforces are given full support and protection so that they are in a sound position to help deliver a stronger ports and shipping sector when a recovery from a disruptive event like the COVID-19 pandemic emerges.
Recommendation 17: Recommend that policy and regulatory changes be made to overcome the critical risks in Australia’s supply chain resilience and biosecurity risks from the nation’s almost complete dependency on the use of foreign ships, not only in international inbound and outbound trade, but in domestic coastal trade. Recommendation 18: Recommend that the Federal Government proceed as a high priority to establish and maintain a national strategic fleet as an important first step in improving Australia’s supply chain resilience, and that to give effect to this policy commitment, the Government establish an independently chaired stakeholder and government task force to:
• Clarify the rationale and the principles for, and conditions under which, ships would fall into the national strategic fleet;
• Identify the types of ship operations that would form part of the national strategic fleet;
• Advise on the legislative, fiscal and regulatory arrangements that would establish and maintain a national strategic fleet; and
• Develop options for the funding and financing required to establish and maintain a national strategic fleet, including the public service and commercial opportunities arising from public investment in a national strategic fleet.
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Recommendation 20: A 14-day quarantine period should be enforced by all ports for any ship arriving from an international port to their first port of call in Australia (exceptions to this could be declared, for example for vessels arriving from NZ or Pacific Islands). International ship arrivals must be met in their first port of call by a medical professional who will carry out health checks and COVID-19 tests on all crew members. Darwin and WA do regularly receive ships from international ports with less than 14 days transit time so particular attention needs to be paid to measures in these ports. Any sick crew members must receive proper and immediate medical attention as per their rights under the Maritime Labour Convention. Recommendation 19: Recommend that the Federal Government urgently reform of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (CT Act) as proposed in this submission to restore balance in the coastal trading licencing regime to preference Australian ships with Australian crews in core trades including the large cruise sector, noting that utilisation of Australian ships that use a consistent core complement of Australian crews who can be subject to close health monitoring, tracking and tracing, and who can be trained in all the best practice COVID-19 control measures, is an essential and urgent post COVID-19 requirement, to ensure supply chain integrity and continuity, to strengthen WHS arrangements for seafarers, to strengthen Australia’s human biosecurity arrangements and to minimise modern slavery risk in the shipping industry. Recommendation 21: Acknowledge there was a breakdown of work health and safety (WHS) systems and regulation in the maritime industry during the COVID-19 pandemic, which is jeopardizing the health and safety of international seafarers on ships voyaging to and from Australia and workers in Australian ports. Recommendation 22: Acknowledge that there remain failings in the Australian biosecurity arrangements applying in ports and in dealing with international ships docking at Australian ports, which is compounding the health and safety risk to seafarers, to port workers and to the Australian community from the transmission of communicable diseases such as COVID-19. Recommendation 23: That health pandemics as declared under Biosecurity and State/Territory Public Health Acts should be determined to be notifiable incidents under the WHS Acts in all jurisdictions and that WHS Acts be amended to accommodate that requirement. Recommendation 24: That AMSA’s role as the Australian Port State Control (PSC) regulator be the subject of an independent investigation involving the International Labour Organisation (ILO) so the findings gain a level of international ownership and response. Recommendation 25: That the Australian and State Governments reform Australia’s biosecurity arrangements by:
• Amending the Commonwealth Maritime Arrivals Reporting System (MARS), the NSW Health Pre Arrival Risk Assessment and Acute Respiratory Diseases (ADR) Log reports, and the PANSW Biosecurity Declaration (with application to all States and the Northern Territory) to provide clear instructions to ships’ masters on the quality and detail of reporting, that must contain co-signing by the chief onboard officer responsible for seafarer and passenger health;
• Ensuring there is a common and highly precautionary threshold standard used by State and NT health agencies to determine risk of community transmission of a communicable disease;
• Substantially increasing penalties for false or misleading or inadequate information provision by ships masters;
• Requiring that the state agencies responsible for human biosecurity health assessments of seafarers and passenger be mandated to undertake comprehensive onboard health
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assessment of seafarers and passengers in circumstances where the WHO or Australian biosecurity officials have declared an outbreak of a communicable disease, before any other onshore workers are permitted to board a ship and before approval is given for ships to commence unloading cargo or disembarking crew and or passengers; and
• Requiring that all biosecurity, immigration, customs and marine agencies develop and implement, and make public, appropriate interagency communication protocols that ensures full disclosure of ship reporting under the Pre Arrival Report in MARS to other agencies including marine and WHS agencies, and build these protocols into risk management systems.
Recommendation 26: that the Australian Maritime Safety Authority (AMSA), consistent with its responsibility to authorise Vessel Service Traffic (VTS) providers under Marine Order 64, engage an independent auditor to undertake a review of its VTS authorisation of the Port Authority of NSW (PANSW) with a view to imposing new conditions on PANSW requiring it to:
• Develop, in consultation with stakeholders, a new risk assessment framework that addresses WHS risks for port workers such as the risks arising from communicable diseases such as COVID-19:
o And that the new protocols include a publicly available MOU or similar instrument setting out cooperative information exchange and communication arrangements between the two organisations, and that part of that communication require the PANSW to convey decisions arising from communication and information exchange to the port workforce, maritime unions and employers of port workers;
• Consult SafeWork NSW, NSW Health, employers of workers who perform roles at NSW ports and their trade unions on the WHS risks, new WHS standards and due diligence processes and protocols to ensure risks to the health and safety of all port workers are taken into consideration in decision making by the harbourmaster and VTS staff in relation to ship entry to ports in circumstances where communicable diseases are prevailing; and
• Re-train all VTS staff, including management and the crisis management team, in new risk assessment and risk procedures and protocols.
Recommendation 27: That Princess Cruises Lines Ltd be the subject of an independent investigation regarding its WHS practices by a panel of WHS experts, trade union and ship owner representatives led by a non-Australian PSC Regulator such as Maritime NZ and involving the ILO, to determine if it has breached any WHS law. If so, it should recommend that SafeWork NSW or the NSW Director of Public Prosecutions initiate legal proceedings against Princess Cruises Lines Ltd. Recommendation 28: That the Prime Minister write to the head of the Kuwait Government advising that Australia expects the Kuwait Government to ratify the ILO Maritime Labour Convention (MLC) if it wishes to continue to undertake maritime trade with Australia. Recommendation 29: That AMSA write, after consulting with the MUA and ITF, to its counterpart PSC regulator in Kuwait and to the ship owner/operator and employer, Kuwait Livestock Transport and Trading, recommending improvements to WHS and labour practices on Kuwait registered ships that trade with Australia. Recommendation 30: That the WA Government confer with all entities involved in the live animal export trade in WA to advise WA Government expectations in relation to labour and WHS standards applying to ships chartered for the live animal trade from WA ports, and one of those expectations be that the nation in which the ship for that trade is chartered, has ratified the ILO MLC and has in place appropriate WHS and labour standards in all elements of the live animal supply chain.
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Recommendation 31: That the WA Government, after conferring with the maritime unions, the ITF, AMSA and WA state marine and port authorities that have harbourmaster functions, develop WHS and labour standards conditions for all international ships that wish to trade through WA ports, and for the WA Government to identify the most effective legislative mechanism to ensure those new conditions are introduced and enforced. Recommendation 32: The Australian government must take action facilitate crew changes for all crew on ships in Australian ports, particularly where crew have worked beyond the maximum time prescribed by the Maritime Labour Convention and contractually codified in each seafarer employment agreement. Recommendation 33: That the Australian Government recognise the significant increase in the social isolation to seafarers on ships servicing Australian ports arising from the COVID19 pandemic and the impact this isolation is having on the mental wellbeing of the seafarers. Recommendation 34: That the Australian Government allocate funding for the provision of Wi-Fi access for seafarers on ships on the Australian coastline as well as those at berth in Australian ports to improve their communication access and reduce the incidence of metal health issues among seafarers. Recommendation 35: That in order to develop new mechanisms for identification and enforcement of WHS and labour standards on international ships trading with Australia to spearhead international ship regulatory reform, the Department of Foreign Affairs and Trade, as the Commonwealth agency with responsibility for advancing human rights globally and as the agency with key responsibility for Australia’s role within the United Nations, be tasked with:
• Leading and coordinating a national stakeholder discussion aimed at developing solutions and proposals for injecting into the relevant international fora on which Australia is represented, like the ILO and IMO aimed at framing long term solutions to systemic failure of international ship regulation; and
• Considering modern slavery risk, WHS regulation and labour standards applying to international seafarers and better ways to enforce the rights of seafarers deriving from international Conventions like the ILO MLC and the core ILO Labour Conventions to which Australia and other nations involved in ship regulation are signatories, where failures have been highlighted in the case of the cruise and cargo ship sectors of international shipping during the COVID-19 pandemic, and that the stakeholders to be involved include: ➢ The policy departments overseeing ship safety, the Department of Infrastructure,
Transport, Regional Development and Communications, the Department overseeing labour relations and WHS, the Attorney General’s Department, the agency responsible for compliance with the Modern Slavery Act 2018, the Department of Home Affairs and relevant statutory agencies such as AMSA and Safe Work Australia, along with the employer organisation MIAL, and seafarer representative organisations the MUA and ITF.
Recommendation 36: That one key initiative to be developed through the stakeholder discussion is an Australian initiative for consideration by the ILO aimed at securing international support for a set of reforms to international shipping regulation that builds on the ILO MLC of 2006 by requiring a new Convention or significant amendment to the ILO MLC. The aim of a new of amended Convention is to:
• Establish new international seafarer labour standards including a minimum wage and retirement benefits; and
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• Establish a new international shipping labour and WHS compliance and enforcement regime that might for example, establish a series of domestically based international shipping tribunals to enable the weaknesses in international shipping to be systematically addressed by such a network of interconnected shipping tribunals in key shipping regions like North America, Europe/UK, Latin America, Africa, Asia and Australia/Oceania.
Recommendation 37: That the Australian Government, in cooperation with the States/NT, establish an ongoing international shipping commission with the involvement of all relevant stakeholders, the purpose of which is to:
• Provide a national framework to ensure that Australia maximises the economic and social benefits from international shipping;
• Set and review minimum standards for the cruise sector to re-establish a social licence to operate in Australia;
• Develop and promulgate Codes of Conduct on the advice of relevant stakeholders in each of the key subsectors sectors of international shipping in Australia – cruise shipping, cargo shipping and offshore energy shipping. The Codes of Conduct be designed to establish principles and mechanisms for addressing the full spectrum of labour, WHS, biosecurity protocols, employment, training and qualification issues as well as agency coordination and compliance and enforcement arrangements.
• Develop protocols, in conjunction with international labour and maritime organisations, to address the stranding of seafarers aboard international ships trading with Australia in circumstances where government restrictions on travel and borders prevent seafarers from being relieved by fresh crews;
• Ensure clearly defined responsibilities and the efficient operation and interaction of each or the Commonwealth and State/NT agencies and the key stakeholders that interface with international shipping in Australia, covering:
o Ship safety, including pollution and biosecurity (derived from IMO and ILO Conventions);
o WHS and welfare of seafarers (derived from ILO Conventions) and including the interface with public health and human biosecurity laws;
o Labour standards and modern slavery (derived from the ILO Core Labour Conventions);
o Seafarer rights including representational and access rights (derived from ILO and IMO Conventions);
o Border security, customs, immigration, taxation and crimes at sea; and o Interface with domestic shipping and ports.