The Comptroller-General of Customs has forwarded me the following memorandum for advice:

Section 290 of the Navigation Act provides as follows: 290 (1) If the seamen employed on any British ship were not engaged in Australia, the master shall, before the ship engages in the coasting trade, make and sign, before a superintendent, an indorsement or memorandum on the agreement specifying the wages to be paid to the seamen whilst the ship engages in the coasting trade, and that indorsement or memorandum, when countersigned by a superintendent, shall have effect as an agreement between the master and those seamen.

(2) Where under the original agreement a seaman is entitled to be paid at a higher rate of wages than the rate ruling in Australia for seamen in a corresponding rating, nothing in this section shall affect his right to such higher rate during the engagement of the ship in the coasting trade. The Solicitor-General has advised⁽¹⁾ that, in ascertaining what are the 'wages at the current rates ruling in Australia' (section 289 (1)), regard must be paid to the hours of labour in respect to which wages are payable; that overtime paid for periods worked in excess of such hours would be part of the 'current rates of wages' to which the seamen are entitled; and that compliance with section 289 also involves payment of Australian rates for work performed on Sundays and holidays.

In view of this, it would appear that the endorsement required under section 290, specifying the 'wages' to be paid to the seamen whilst the ship engages in the coasting trade, should embody not only a statement of the rates of wages per calendar month to be paid, but also the hours of labour, rates of overtime, Sunday and holiday pay etc., in accordance with the practice ruling on the coast. It is apparent that, in practice, there would be very great difficulty in giving effect to the requirements of section 290 as to endorsements of the agreement, even if such were limited to a mere statement of the rates of wages per calendar month for each rating carried. But when questions of hours etc. are also involved, it becomes quite impossible to do so. Seamen on the Australian coast belong to half-a-dozen different unions, and each union has its own separate award or agreement as regards wages and conditions of employment. The Award of the Merchant Service Guild covers about ten pages, the Institute of Marine Engineers about fifteen pages, those of the Marine Cooks, Bakers and Butchers' and the Federated Marine Stewards and Pantrymen's Associations four and seven pages respectively, and the Agreement of the Seamen's Union about eight pages.

Copies of these documents are attached. It will be apparent that it would be quite impracticable to include even the barest recapitulation of rates of wages, overtime, holiday pay etc. in an endorsement on the agreement.

Seeing that endorsement of the full particulars on the agreement was not practicable, consideration was given to the preparation of a memorandum setting out the wages etc. for the various organisations under their awards and agreements, and the incorporation of this in the agreement by means of a short endorsement as follows:

Pursuant to the provisions of section 290 of the Commonwealth Navigation Act 1912-1919, it is hereby agreed that the wages to be paid to the seamen of the within-named ship shall, for the period during which she engages in the coasting trade of Australia, be at the rates specified in the attached memorandum or in the within-written agreement, whichever are the higher.

Dated at the Port of........................

This day of 192

Master.

In the presence of ...................................................................

Collector and Superintendent.

It has now been found that even this is not feasible. In the first place, the terms of the awards etc. cannot be summarised without great danger of altering their meaning. In the next place, it would not be possible to prepare a single memorandum applicable to the whole coast, as certain awards and agreements apply only to sections, as, for example, to the New South Wales coastal trade. The printing of the memorandum, when prepared, would be expensive, and as a fresh memorandum would be necessary on each occasion on which a new award or agreement came out, or an existing one was varied, the cost would be altogether too great for the very few cases in which a memorandum would be required. A possible alternative to the preparation of a memorandum of the nature referred to would be to modify the endorsement on the agreement to provide that the wages to be paid 'shall be at the rates specified in the attached copies of agreements and awards relating to the wages and conditions of employment of seamen on the Australian coast'. A possible objection to this, however, is that certain of the conditions of employment set out in these agreements and awards could not be properly considered as coming within the scope of the terms 'wages at the current rates ruling in Australia'.

It is requested that the Solicitor-General will be good enough to advise in the matter, and more particularly on the following points:

1. Whether it would be a sufficient compliance with the requirements of section 290 if the endorsement or memorandum on the agreement specified merely the monthly rates of wages ruling on the coast; or whether the term 'wages' as used in this connection has the same meaning as the term 'wages at the current rates ruling in Australia' referred to in his opinion above mentioned;
2. Whether an endorsement on the agreement of the nature mentioned in paragraph (6) above, either in the form mentioned or in some modified form, together with the attachment of copies of the various awards and agreements would be a proper compliance with section 290 (1);
3. Whether a short endorsement making general reference to the existing awards and agreements, but without requiring the attachment of copies of such, would be a compliance with the section. If so, will the Solicitor-General please advise as to the form that such endorsement should take.

The expression 'wages' as used in section 290 means current rate of wages ruling in Australia in relation to the seamen engaged in the part of the coasting trade in question.

Strictly speaking section 290 requires that all that 'current rates ruling in Australia' connotes shall be endorsed on the agreement. To specify those rates on another document attached to the agreement or a specification by reference to existing awards would not in my opinion be 'an indorsement on the agreement specifying the wages'.

It is pointed out that an endorsement complying with the view I have expressed is a practical impossibility. It is suggested that until the Act can be amended the practice be followed of endorsing on the agreement the monthly rates of wages payable together with a short reference to the fact that hours, overtime etc. are governed by existing awards.

[Vol. 18, p. 171]

(1)Opinion No. 1057.