Opinion Number. 1057



Key Legislation

NAVIGATION ACT 1912, ss. 6, 288 (3) (a), 289 (1)

The Comptroller-General of Customs

The Comptroller-General of Customs has forwarded the following memorandum for advice on the question raised therein:

Section 288 of the Navigation Act includes as a condition upon which licences are issued to ships to engage in the coasting trade: 'That the seamen employed on the ship shall be paid wages in accordance with this Part of this Act'.

  1. The principal provision of Part VI of the Act referred to in regard to wages is contained in section 289, which provides, inter alia, that:
  2. Every seaman employed on a ship engaged in any part of the coasting trade shall, subject to any lawful deductions, be entitled to and shall be paid, for the period during which the ship is so engaged, wages at the current rates ruling in Australia for seamen employed in that part of the coasting trade . . .

  3. The term 'wages' as used in this provision, has a wider meaning than that of merely the monthly rate of wages provided for in the seaman's agreement with the master. 'Wages' is defined in section 6 as including 'emoluments of any kind'. Wages would include, therefore, payment of overtime, and all other benefits obtained by the seaman in return for his services.
  4. Substantially, I think, the effect of sections 288 and 289 referred to is that in the matter of monthly wages, hours of labour, overtime, Sunday and holiday pay, and meal times in port, and probably annual leave of absence on full pay, seamen upon oversea ships engaging in the coasting trade must be treated on exactly the same footing as are seamen on Australian ships similarly engaged. I attach a copy of the agreement between the seamen and the shipowners at present operative, which covers the matters specified.
  5. The quesion as to what is actually involved by the requirement that wages shall be paid at the current rates ruling in Australia is, however, one of very great importance, and it is suggested that the file be referred to the Attorney-General's Department for favour of ruling.

In ascertaining what are the 'wages at the current rates ruling in Australia' (section 289 (1)) regard must be had to the hours of labour in respect of which the wages are payable. For any period worked in excess of such hours, overtime should be paid at the rate ruling in Australia and such overtime would be part of the 'current rates' of wages to which the seamen are entitled under the section.

Compliance with section 289 also involves payment at Australian rates for work performed on Sundays and holidays. I also incline to the opinion that the benefit of any provision as to 'meal time in port', observed in Australia, can be claimed by seamen to whom the section applies, inasmuch as the provision may have the effect of reducing the hours of labour in port.

The question of annual leave is one of some doubt, but I incline to the opinion that seamen covered by section 289 are not, by virtue of that section, entitled to this privilege according to the practice obtaining in Australia.