Critiquea Memorandum of Understanding (MOU) in line with standard MOU and anyrelevant legislation.
AMemorandum of Understanding (MOU) is basically an agreement betweentwo or more parties that have entered into a working relationship.The document states why the parties sign an agreement, what they wantto achieve, and how long their relationship can last. In order forthe MOU to be functional, it has to be endorsed by the concernedparties. The endorsement demonstrates that the parties have decidedto create a process which is mutually agreeable. In the MOU, theparties involved have to identify how disputes emerging between themcan be solved. This helps to ensure that the existing workingrelationship between them is maintained.
Thispaper provides a critique of a provided MOU. The critique is in linewith a standard MOU and relevant legislation.
Critiqueof the MOU between WorkCover Authority of New South Whales andAustralian Maritime Safety Authority
a.)Identification of Parties
Anystandard MOU begins with the identification of parties that areinvolved in an agreement. This makes it possible for the parties tobe known. The identification of the parties also involves a detaileddescription of the kind of relationship which exists between them(State Dept, 2011). It is from this relationship that one can tellwhy the parties have entered into agreement. The MOU in the providedreading appropriately identifies the concerned parties and it givesan in-depth description of their relationship. This MOU is anagreement between the Australian Maritime Safety Authority (AMSA) andthe WorkCover Authority of New South Wales (Australian Government,n.d.). AMSA seeks to promote the safety of shipping and seafarers,and protect marine environments against pollution. On its part,WorkCover is concerned with the achievement of safe workplaces andimprovement of the wellbeing of injured workers. Both AMSA andWorkCover complement each other in the enhancement of safe workingenvironments.
Afterthe identification of parties, a MOU gives some backgroundinformation about the circumstances that led to the signing of theagreement. It is at this part that the benefits of the MOU arementioned. The background can also say something about the status ofthe agreement in relation to the existing ones (World MeteorologicalOrganization, 2012). The provided MOU gives vital backgroundinformation that can help the reader to understand why it wascreated. It is stated that the agreement pertains to safety inmaritime workplaces in New South Wales (Australian Government, n.d.).From this statement, it can be understood that the MOU was signed topromote collaboration in improvement of maritime workplace safety.The benefit of improving the safety of this area is that it can helpto ensure that workers, environment, and water vessels are protected.In the MOU, it is said that respective statutory powers and duties ofAMSA and WorkCover cannot be affected by anything in the agreement(Australian Government, n.d.). This provides a clear status of theagreement.
c.)Definition of Terms
Thebackground of a memo can be followed by the definition of terms. Inthis part, agreed terminologies are defined (World MeteorologicalOrganization, 2012). This makes it easy for them to be interpretedcorrectly by the parties that have entered into an agreement. In theMOU provided, some important terms have been clearly defined. Theseinclude terms such as “port authority,” “regulatory authority,”“incident,” “plant,” “vessel,” and “workplace”(Australian Government, n.d.). For instance, the term regulatoryauthority is used to describe WorkCover or AMSA. Incident refers toan incident which has to be notified to a given regulatory authorityin accordance to the applicable legislation. The definition of avessel is based on the NavigationAct 2012.This term is used to refer to any vessel which is used for navigationby means of water, whether moved or propelled. Vessels in this caseinclude barges, air-cushion vehicles, and other types of craft thatoperate in water bodies.
d.)Purpose of MOU
Aneffective MOU should have a purpose. The purpose sates the intentionfor which a given agreement was signed. It highlights the objectivesof the parties that are in a relationship (State Dept, 2011). Withoutthe purpose, it can be difficult to tell what parties that are inagreement hope to achieve in the future. The provided MOU gives aclear purpose of the agreement between WorkCover and AMSA. It isstated that the agreement is concerned with the achievement of safetyin the maritime workplaces that are located within the New SouthWales (Australian Government, n.d.). The MOU provides a mechanismthat the parties involved can use in order to ensure that there issafety in the region. The agreement is based on the understandingthat both AMSA and WorkCover have an important role to play in theprovision of a working environment which is safe. Therefore, eachparty is committed in ensuring that this particular objective is met.
e.)Scope of MOU
Awell written MOU contains a scope. The scope is a statement about theboundaries of an agreement (World Meteorological Organization, 2012).It states what a MOU includes and what is not part of it. The scopegives information on what needs to be considered in an agreement. Theinformation should be appropriate and clear enough in order to avoidcontradiction and cases of overlapping. The MOU in the reading has aclearly defined scope. It is shown that AMSA and WorkCover intend tocooperate in the improvement of safety in maritime workplaces in NewSouth Wales and those ones around this region (Australian Government,n.d.). This means that the two parties have no role in promotingsafety within maritime places that do not lie within this region. Itis also states that WorkCover and AMSA are interested in theenhancement of safety for workers, vessels, and the workingenvironment region. Any form of safety outside this scope is notguaranteed.
AMOU normally contains the legislative context. This part specifiesthe degree to which a given agreement is lawfully binding. Thelegislative context also refers to a given relevant legislation onwhich the relationship of the parties is based (State Dept, 2011).The function of the legislative context is to ensure that all theresponsibilities highlighted by an agreement are in line with theduties and mandates of each party. The provided MOU is based onvarious legislations that are legally binding to each party. Theagreement derives from AMSA jurisdictions such as the OccupationalHealth and Safety (Maritime Industry) (OHS (MI) Act 1993, NavigationAct, The Marine Safety (Domestic Commercial Vessel) National Law Act2012, and Marine Orders 11, 17, 21, 32, 41 and 42. The MOU is alsobased on WorkCover legislations such as Work Health and SafetyRegulation 2011 (NSW), Work Health and Safety Act 2011 (NSW WHS Act),Explosives Regulation 2013 (NSW), and Explosives Act 2003 (NSW)(Australian Government, n.d.). These provisions provide importantinformation about the legal context of the agreement.
g.)Terms of Operation
Termsof operation are part and parcel of any standard MOU. These termsprovide information on how the agreement can be administered (StateDept, 2011). They give out the conditions under which the agreementcan be effected. Information about management of funds and privacyprovisions is included in this section. The MOU of the reading statesthat WorkCover and AMSA officers who are involved in variousinvestigations pertaining to incidents covered by the agreement willhave the right to access it (Australian Government, n.d.). A copy ofthe agreement has to be publicly available. The MOU also allows theconcerned parties to share information where it is legally permitted.However, each part has the responsibility of ensuring thatconfidential information does not get to third parties. Despiteproviding important information on how it can be administered andimplemented, the MOU does not clarify the issue of how funds caneffectively managed in order to ensure that it meets its objectives.
h.)Joint Responsibilities and Undertakings
AnMOU can never be standard without the identification of the jointundertakings and responsibilities of each concerned party. Thisparticular part gives a detailed discussion of how the parties cancooperate (World Meteorological Organization, 2012). It also statesthe protocols of communication that is likely to exist between them.In the MOU provided in the reading, it is noted that the agreement isbased on interdepartmental cooperation (Australian Government, n.d.).Officers from both AMSA and WorkCover will have to cooperate invarious joint activities. For example, the agreement notes that whenconducting investigations, both parties have to comply with theprotocols established between them. Where necessary, the parties canprovide assistance to each other. This kind of cooperation will helpto ensure that the goals of the agreement are achieved. It is alsoimportant to note that the MOU allows communication and sharing ofinformation between WorkCover and AMSA agents (Australian Government,n.d.). This can help to ensure that there is effective cooperationbetween the parties.
Astandard MOU must have a specified duration. The duration gives aclear timeframe or timeline within which the agreement can beeffective (World Meteorological Organization, 2012). It states thecommencement period of the agreement and the date on which its termswill expire. From the MOU in the reading, there is no clearinformation about the duration of the agreement (AustralianGovernment, n.d.). It is difficult for one to understand when theagreement will start working and how long it will take beforeexpiring. This makes the MOU one of the weakest agreements since thereaders is left in the dark on the issue of how long it can continueto be legally binding. Agreements that lack specified timeframeshardly last (World Meteorological Organization, 2012). It has beenestablished that parties in such agreements end up breaking the termsthat bind them in a relationship. They find it difficult to honourand maintain the relationship for a long period of time.
AMOU has to be flexible enough in order for it to accommodatenecessary changes. This is due to the fact that the terms of theagreement are likely to change with time. Therefore, it is necessaryfor the agreement to allow some form of review (State Dept, 2011).The review section should suggest the period after which the terms ofthe agreement can be reviewed and the conditions under which this cantake place. The MOU which has been provided in the reading lacksinformation about reviewing the agreement (Australian Government,n.d.). This has well weakens its credibility. It makes it appear thateverything in the agreement is correct and should be implemented theway it is. Yet the truth of the matter is that there is no MOU whoseterms can be rigid forever. One wonders what can happen if therelationship of AMSA and WorkCover changes in a way which can make itnecessary for their agreement to be altered.
k.)Dispute Resolution /Relationship Management
Anygood MOU should contain the section pertaining to dispute resolutionor relationship management. This part helps to maintain therelationship of the parties that have entered into an agreement. Itensures that conflicts arising are effectively solved (WorldMeteorological Organization, 2012). The dispute resolution sectioncan as well contain names of the third parties that may be involvedin addressing the conflicts. The provided MOU has a disputeresolution section which specifies the procedures that are supposedto be followed in care there is a dispute between AMSA and WorkCover.From the agreement, the parties are urged to take the firstinitiative of solving their conflicts within seven days. If they failto do so, they have to take their cases to certain officers who arenominated by them (Australian Government, n.d.). The officers havethe responsibility of ensuring that they do everything possible inorder to solve the disputes. This can help to restore therelationship of the two parties.
l.)Official Endorsement by Parties
Inorderforany MOU to be effective, it has to get the endorsement of theconcerned parties. The endorsement has to be made by officersrepresenting each of the parties (World Meteorological Organization,2012). These may include the chief executives, general managers,directors, and other prominent officials of the parties. In endorsingthe agreement, the officers have to sign it on behalf of theirrespective parties. Unless it is stated, the date of endorsementusually marks the commencement of an agreement. In the providedagreement, there is an endorsement section where officials from theWorkCover and AMSA are expected to sign on a specified date. Each ofthe parties has to be represented by one of its top officials(Australian Government, n.d.). The endorsement by WorkCover has to bemade by the general manager of the Work Health and Safety department.On its part, AMSA has to be represented by its chief executiveofficer.
Astandard MOU usually contains contact information. This includescontact details of the parties in an agreement and the contacts ofthe officers who can be contacted in case there is a dispute (StateDept, 2011). Contact details make it possible for parties andrelevant party officials to be reached for crucial information. Inthe MOU which the set reading contains, contact information of bothAMSA and WorkCover are given. However, the contact details are onlyhelpful for emergence response and reporting of incidents andaccidents (Australian Government, n.d.). It is also important to notethat contact information of dispute resolution officers from eachparty is given (Australian Government, n.d.). These contacts can beuseful in case of any conflict arising between the concerned parties.
AnMOU also contains additional annexes in form of useful supplementarymaterials. The annexes give more information about various matterspertaining to the terms of the agreement. This may includeinformation about work plans, budgetary issues, milestones, and evenexpected outcomes (State Dept, 2011). Annexes are integral parts ofany MOU. They should not be treated as minor parts that containtrivial information. The MOU in the reading presents additionalannexes in form of three schedules. Schedule one contains contactdetails. Schedule 2 provides information about jurisdictional matrix.Schedule 3 highlights operational guidelines (Australian Government,n.d.). All the three schedules contain important information that canbe used to understand the provisions of the agreement.
Aneffective MOU as contains information about its limitations. Thisinformation makes it possible for what the agreement is not able todo to be known (World Meteorological Organization, 2012). Limitationsdo not make an agreement ineffective. They only show that a givenfunction is not within the scope of that particular agreement. One ofthe most important limitations in the provided MOU is one whichstates that “….nothing in this MOU can affect respectivestatutory duties, discretions and powers under relevant legislation”(Australian Government, n.d., p. 3). This particular limitation meansthat the agreement does not in any way have an impact of the officialfunctions of WorkCover and AMSA.
TheMOU between AMSA and WorkCover contains some of the important partsthat are part of a standard MOU. For instance, the parties itinvolves are identified, its purpose is stated, the legislativecontext is given, contact information is provided, and the additionalannexes are clearly highlighted. However, it is important to notethat the MOU lacks information about its duration and the necessaryreview. Despite this, all the relevant legislations governing therelationship between the parties in agreement are clearly describedin the document. This makes it a valid and credible MOU.
AustralianGovernment. (n.d.). MEMORANDUMOF UNDERSTANDING between Workcover Authority of New South Wales andAustralian Maritime Safety Authority. Retrievedon July 16, 2016 fromhttps://www.amsa.gov.au/forms-and-publications/Publications/AMSA487.pdf
StateDept. (U.S.). (2011). Treatiesin Force 2011: A List of Treaties and Other International Agreementsof the United States in Force on January 1, 2011.New York: Government Printing Office.
WorldMeteorological Organization. (2012). Guidelinesfor Creating a Memorandum of Understanding and a Standard OperatingProcedure between a National Meteorological or HydrometeorologicalService and a Partner Agency. Retrievedon July 16, 2016 fromhttp://www.wmo.int/pages/prog/amp/pwsp/publicationsguidelines_en.htm