Speech given by Alexander Ward, President, at the Tonkin's Workers Compensation Forum. 26 October 2011

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1 Workers Compensation Speech given by Alexander Ward, President, Law Council of Australia at the Tonkin's Workers Compensation Forum 26 October 2011 GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Telephone Facsimile Law Council of Australia Limited ABN

2 Summary 1. Workers compensation is something we all acknowledge as a vital part of a modern working society. 2. Workers compensation itself has existed in Australia for over 100 years. 3. South Australia is credited with establishing Australia s first workers compensation legislation in 1900, based on British legislation from Since those early days, state and territory jurisdictions have established and enforced their own workers compensation systems based largely on the British legislation. 5. In fact, if I had been giving this presentation at the beginning of the 1980s, my thesis would have been somewhat different as most jurisdiction workers comp laws were broadly the same. 6. But since the 1980s there have been substantial change to workers compensation laws by governments seeking to reduce scheme costs, improve return-to-work out comes and limit or control access to common law. 7. The result today is a patch work of different laws, which vary substantially in terms of basic features, including definitions, structure and entitlements. 8. These differences generate a significant compliance burden for employers in an increasingly nationalised economy. 9. There has been a push for some time to harmonise workers compensation systems across the country. The strongest proponents of harmonisation have been national employers, which face the burden of navigating different compensation frameworks for employees located throughout the country. 10. However, the enormity of the task of harmonisation in this area cannot be overstated. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 2

3 11. There are currently 10 separate workers compensation schemes operating in Australia, each of which differ in terms of common law access, benefit structures and public/private insurance. 12. Governments take the performance of workers compensation schemes very seriously. Accordingly there is an inherently political element to discussions about harmonisation. 13. This arises from the competing objectives governments have to provide comprehensive coverage for workplace injury under a nofault scheme, whilst minimising scheme costs and encouraging rehabilitation and swift return to productive employment. 14. Today I will outline the Law Council s modest suggestions for harmonisation of workers compensation systems. As ever, the objective is to reach a balance that is theoretically acceptable to governments, employers, insurers and workers. 15. So why are lawyers so interested in harmonisation? Regardless of how your scheme is structured and whether or not workers can pursue damages for injury, lawyers are essential to the interpretation and operation of workers comp schemes. 16. Injured workers regularly need assistance in dealing with WorkCover authorities and insurers, regardless of whether they are involved in a dispute about their entitlements. 17. For this reason, the Law Council has argued forcefully that any process toward harmonisation in this are must involve direct participation by the legal profession as a key stakeholder alongside employers and employees. 18. I should note that private workers compensation insurers would fall into that category as well. 19. In this regard, the Law Council has suggested that membership of Safe Work Australia s advisory bodies should be expanded to include representation from the legal profession and the insurance industry. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 3

4 Background 20. I would like to commence by setting the scene of workers compensation in Australia to illustrate why harmonisation is necessary. 21. The previous Commonwealth Government attempted to address the concerns of national employers by extending self-insurance arrangements under Comcare to private entities operating in more than one jurisdiction. 1 This had the effect of enabling larger companies to opt-out of state and territory workers compensation and occupational health and safety schemes and to self-insure under the Commonwealth Safety, Rehabilitation and Compensation Act. 22. Whilst this option was attractive to many multi-jurisdictional employers, it led to significant concern about the viability of stateterritory workers compensation schemes, as a result of the departure of most larger employers. 23. Following the 2007 Federal election, the new Labor Government announced a moratorium over any new applications to self-insure under Comcare. Subsequently it was announced that the Workplace Relations Ministers Council would establish uniform OH&S laws which would inevitably lead to pressure to harmonise workers compensation laws across the country. 24. Following an extensive inquiry, the Workplace Relations Ministers Council (minus Western Australia) reached general agreement over the terms of a Model Work Health and Safety (WHS) Act. The Act is to be implemented in all participating jurisdictions by December Once a model OHS law is implemented nationally, it is logical that the Commonwealth Government s focus will turn to harmonisation of workers compensation laws. 1 This partially implemented a recommendation of the Productivity Commission s 2004 Report on National Workers Compensation. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 4

5 Guiding Principles 26. As a starting point, the Law Council has elaborated a set of guiding principles that suggest a staged approach to harmonisation. 27. The Law Council has based its approach to national harmonisation on seven guiding principles: 28. Firstly harmonisation is better than Comcare (a) 71.5% of employees work for employers who are based in only one jurisdiction. Whilst the number of firms based in more than one jurisdiction may be increasing, there is not yet a crisis that demands urgent change such as extension of self-insurance under Comcare to multi-jurisdictional employers. (b) Further, extension of Comcare nationally, to compete with state/territory schemes will result in greater complexity and confusion, as companies and their employees could then be subject to differing entitlements and standards in the same jurisdiction, depending on whether they are insured under the Commonwealth or state/territory scheme. (c) A better approach, therefore, would be to harmonise all schemes to ameliorate compliance and other costs for multijurisdictional employers. 29. Number two balancing fairness and sustainability (a) Benefits should be accessible and provide a financial basis for injured workers to recover, particularly in the initial stages of injury. (b) Benefits must be balanced with the need to ensure schemes are financially viable and are not an unjustified impost on industry. (c) Such a balance should not be achieved by forcing injured workers to give away rights that are enjoyed by citizens in similar circumstances. 30. Number three rewards for safety Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 5

6 (a) It is in everyone's interest that workplace injuries and deaths are reduced. (b) Schemes should reward improved safety performance. Conversely, disincentives and penalties should exist for ongoing disregard for safety. 31. Number four return to work (a) All schemes should have mechanisms to ensure that, wherever possible, injured employees are assisted in returning to work, with another employer if necessary. (b) Obligations of employers, employees and insurers need to be built in to any scheme. 32. Number five access to legal advice and assistance. (a) Workers' compensation schemes are complex; injured employees, employers and insurance companies need to have access to independent legal advice and assistance. 33. Number six a role for private insurers (a) Most schemes now involve private insurers performing a role, from underwriting and premium setting to management of claims. (b) The Law Council believes there is a role for private insurers and it is appropriate to find balance in each jurisdiction. 34. Number seven a role for employers as self-insurers (a) There should be standard requirements for self-insurance in each jurisdiction and a system of mutual recognition. Phases of Harmonisation 35. With these guiding principles in mind, the Law Council has developed what we believe needs to happen to ensure national harmonisation is executed properly, while maximising benefits for all stakeholders involved. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 6

7 36. But this will need a lot of good will from all involved. Workers compensation harmonisation requires significant cooperation between different levels of government, as well as general agreement by a number of different stakeholder groups. 37. Harmonisation must inevitably be achieved through a staged process, with mechanisms to involve stakeholders in the process. 38. Presently, it seems that the Safe Work Australia Council and Advisory Groups are dominated by representatives of State and Territory WorkCover Authorities, with additional representatives from peak employers and employees representative bodies bodies. It is regrettable that other key stakeholders have been excluded from Safe Work Australia bodies, including representatives from the insurance industry and the legal profession. 39. The three phases of harmonisation can be characterised as: (a) Standardisation of definitions; (b) Standardisation of entitlements; and (c) Standardisation of structure. 40. The stages also reflect the increased level of difficulty in choice and implementation. 41. I will now examine each of these phases and why they are so important to the harmonisation process. Number one standardisation of definitions 42. Phase one is perhaps the most readily achievable, as it simply requires all jurisdictions to agree to a standard set of definitions for workers compensation terminology. It is difficult to argue with the notion that a worker in Queensland ought to be defined in the same way as a worker in Western Australia. 43. These differences are unnecessary and could be standardised, bringing greater uniformity at little cost. 44. I ll now briefly outline definitions in need of harmonisation and why it is important. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 7

8 Definition of Worker 45. The definition of "worker" and "deemed worker" provisions are broadly similar across jurisdictions, but not identical. 46. Any definition should be comprehensive but clear. Nexus with Employment 47. All jurisdictions have the threshold test that compensable work injuries must "arise out of or in the course of employment". 48. There is variation in respect of diseases and an appropriate test is whether the worker s employment is a significant contributing factor to the disease. 49. All jurisdictions accept that this includes aggravation or acceleration of an existing disease. Wages/Remuneration 50. Provisions in all jurisdictions are broadly similar for the calculation of wages/remuneration for compensation purposes. 51. However, a standard approach/formula would be appropriate. 52. It is noted that it may also be desirable to include a formula to calculate the value of additional allowances for compensation purposes. This could be done by way of a standard definition of earnings. Older Workers 53. All schemes now cut incapacity entitlements at age 65 or retirement. 54. Some schemes have made provision for workers aged 65 and over allowing up to 5 years compensation payments. 55. With the proposed increase in the retirement age to 67 all schemes should provide benefits up to that age. A mechanism should also be implemented to protect aged workers, who choose to work past age 67, for at least two years from injury. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 8

9 Exclusionary Provisions of Injury 56. All jurisdictions exclude wilful self-harm and injuries arising from misconduct. 57. All jurisdictions have some formulation in respect of psychiatric injuries excluding those arising from disciplinary proceedings or various other circumstances. 58. A common exclusion is in respect of conditions arising from reasonable disciplinary action or failure to obtain a promotion or transfer or benefit is appropriate. 59. This does however create a statutory fiction. It is not that someone is not injured in these circumstances. Rather it would be better to indicate that compensation was not payable for such injuries. Medical Expenses 60. All schemes allow medical expenses but with different formulations. Attendant Care/Home Help 61. Most schemes have some provision for home-based assistance and attendant care, which could be standardised. Industrial Deafness 62. Schemes have varying thresholds of acceptance (between 5-10% generally) and some schemes have last noisy employer provisions, which allows claims for industrial deafness to be made against the last noisy workplace. 63. The latter is important in reducing disputation and complexity and should be universally adopted. 64. Similarly, most schemes adopt a 5% threshold, which is a reasonable approach. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 9

10 Dispute Provisions 65. There is enormous variation amongst jurisdictions as to how workers compensation claims are managed and disputes resolved. 66. Uniformity may not be easily achieved, however, as a minimum, all schemes should have timetables for dealing with claims, a compulsory conciliation process (with medical panels as an option) and an independent arbiter to resolve disputes by way of a hearing. 67. There should be consideration of a process for internal review before resorting to the expense of external review. Having had the benefit of a decision-makers thinking, a worker may be better placed to provide relevant evidence than at the outset of the claim. The opportunity to do this before engaging in litigation would be beneficial. However, any internal review process should not be mandatory, to avoid undue delay in the claims process. Excess 68. Some schemes provide for employer excess, however this is not consistent between schemes. 69. In general, excess provisions may discourage legitimate claims and should be viewed with caution. 70. This is a matter for consultation with employers but top-up insurance ought to be available for employers to be able to cover the entire claim, if excess becomes standard. Forms 71. A standard medical certificate and claim form should be designed for use in all jurisdictions. Standardising Claims Processes 72. A logical corollary of standardised forms is standardising claims processes and pre-court procedures across jurisdictions. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 10

11 Number two Standardisation of Entitlements 73. Compared with phase 1, phase 2 will be a substantially more difficult subject matter on which to achieve consensus. Workers entitlements vary considerably between schemes, including in relation to journey claims, incapacity payments, common law access and permanent impairment. 74. However, actuarial modelling may assist in reassuring governments about the affordability of various options. 75. The key areas of inconsistency are as follows: Journey / Recess Claims 76. Approximately half of all jurisdictions allow journey claims, while two of those that do not allow journey claims (Victoria and Tasmania) operate no-fault motor vehicle accident schemes for at least the first twelve months. 77. A standardised approach should involve, as a minimum: (a) compensation for injuries incurred during journeys starting from the boundary of the home to the boundary of the workplace and vice-versa; (b) compensation for injuries incurred as a result of authorised travel, such as journeys during work to work sites, training or treatment, or upon errands connected with employment; and (c) compensation for injuries incurred during authorised or ordinary breaks and recesses. 78. The Law Council considers that journey claims are a reasonable aspect of any comprehensive workers compensation scheme. Incapacity Payments 79. Periods over which incapacity payments are made vary from scheme to scheme. 80. The Commonwealth (Comcare), New South Wales, South Australia, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory pay 100% of weekly earnings to injured workers. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 11

12 81. As the vast majority of employees return to work within 26 weeks (nearly 90%) it seems reasonable that incapacity payments are made at 100% of pre-injury wages for the first 26 weeks. 82. This allows people requiring surgical intervention and/or rehabilitation reasonable time to recover and avoids complications which might occur as a result of premature return to work. 83. Thereafter incapacity payments should be made at 80% with ongoing payments for partial incapacity up to this figure. It should be an option for these to continue until retirement age. 84. Loss of 20% of earnings is a more than sufficient incentive for injured workers to return to work as swiftly as possible. 85. Any greater step down in entitlements places a substantial burden on medium to long-term incapacitated workers and may impede their recovery. 86. A 20% reduction is the approximate average step down across all jurisdictions. Commutation/Redemption 87. It is appropriate that the option for a "clean break" be available to both insurers and employees at a certain point, by mutual agreement, to commute weekly benefits into a final lump sum. 88. The Law Council supports a process no sooner than two years from injury on the basis that is agreed between insurer and employee after the latter receives appropriate legal advice. Neither side should be able to force the other to offer or accept redemption of entitlements. Superannuation 89. Most schemes make no provision for loss of superannuation contributions. Employers are required to make contributions whilst the employee remains in employment but there is an issue as to what should occur if a worker continues to remain incapacitated for work. 90. The Hanks Review of the Victorian Workers Compensation Act in 2008 recommended that superannuation entitlements be paid by the authority alongside weekly incapacity benefits at the Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 12

13 mandatory contribution rate of 9%, directly to the injured worker s superannuation fund. This was considered to reflect community expectations and the overarching government policy of enforced retirement savings. 91. Alternatively, consideration should be given to requiring employers to continue to make superannuation contributions to incapacitated workers for the duration of their incapacity. Death Benefits 92. All jurisdictions provide for a lump sum payment to a worker s family on the death of a worker, plus funeral costs (most of which are capped). 93. There is variation as to whether periodic payments are made to dependent children, dependent spouses and dependent relatives, as well as whether some counselling is provided to family. 94. A good model exists under the Queensland Workers Compensation and Rehabilitation Act 2003, which provides relatively swift and fair compensation for bereaved dependants. 95. However, an even fairer model is recommended under the Victorian Accident Compensation Act Review (August 2008), which suggests maximum death benefits be increased from $484,830 for wholly dependent spouse or children. There is a strong argument that this recommendation be adopted under any model provision, along with recommendations which limit the involvement of the court in straightforward cases and streamline the provision of immediate benefits. Permanent Impairment 96. Inevitably some form of guide to the assessment of the degree of permanent impairment is necessary. Whilst various versions of the American Medical Association Guides to the Evaluation of Permanent Impairment are in use, there are significant problems with the AMA Guides as a basis for determining access to compensation for permanent impairment. 97. In particular, the Guides states in its preamble that it is not designed to be used to determine access to compensation for personal injuries. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 13

14 98. Rather than use different or modified versions of the American Medical Association Guide, an Australian Guide should be developed for use by all jurisdictions. 99. An Australian Guide would better reflect Australian clinical practice, which differs in certain respects from clinical practice in the United States. It would also allow the Guide to develop having regard, not just to debate in American medical circles (as reflected in the changes to the American Guide in its various editions), but also debate in Australian medical circles and Australia s national specialist colleges Any Australian guide should be explicitly designed and used for the purpose of fairly determining access to compensation for permanent impairment. Such a guide could be developed by a body representing various views, such as Safe Work Australia, with appropriate expert advice from medical and rehabilitation specialists Access to permanent impairment entitlements should be in addition to incapacity payments and other entitlements. Common Law Access 102. The law of negligence, usually referred to as the common law, is the fairest means of compensating injured persons in circumstances where they suffer personal injuries as a result of the fault of others. This is a civil law right enjoyed by most Australian citizens in such circumstances Although workers compensation provides an insurance safety net without recourse to fault, injured persons ought not to lose their rights to sue at common law simply because they are injured in the workplace. Any new national compensation scheme must, as a fundamental element, have provision for injured workers to recover at common law where they are injured as a result of the negligence of their employer, including access to all heads of damages Common law entitlements also provide an incentive for safety as negligent employers face increased premiums unless poor work practices are remedied. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 14

15 105. The Law Council opposes thresholds of permanent impairment to determine whether a worker is entitled to access the common law, because they inevitably produce injustice in terms of the effect of the injury on different individuals; and provide a disincentive to recovery As well as being a matter of access to justice, the common law provides a mechanism for the resolution of many potential longtail claims, which is important to ensure that the scheme remains financially viable A good example of a well functioning scheme is in Queensland, where workers enjoy very good access to common law if their employer has been negligent. This is in addition to comparable statutory entitlements. Queensland not only allows access to common law, it is also one of the most efficient schemes in the country, costing employers only 1.09% of payroll on It also has the strongest asset to outstanding liabilities ratio in the country This is contrasted with the scheme in South Australia, which is arguably the country s worst performing scheme. Workers in South Australia have no access to common law and can only claim modest statutory entitlements, regardless of how badly injured they are or how grossly negligent their employer may have been. Notwithstanding this, South Australian workers compensation premiums are the highest of any jurisdiction at 2.85% of payroll almost 3-times the premium in Queensland and double the Australian average. South Australia s assets to outstanding liabilities ratio is also the worst in the country Subject to reasonable strictures, the Law Council considers access to common law to be an appropriate and necessary part of any workers compensation scheme. Best Practice Return to Work 110. Finally, there is now enough scheme expertise to identify the best practice return-to-work model. Such a model would include the optimal time to commence intervention by rehabilitation and also the obligations on parties and options that work best. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 15

16 Number three Standardisation of Structure 111. Given Australia s federal system and the differences between publicly and privately underwritten schemes, standardisation of structure is likely to be the most difficult to achieve Nevertheless, the following further steps would bring us closer to harmonisation. Common Benefits 113. There is a significant range in the level of lump sum pecuniary benefits and entitlements available, from death benefits to the amount payable for permanent impairment across jurisdictions As the various systems are harmonised, so should the level of benefits available for comparable injuries under corresponding schemes. The dependents of a deceased worker should receive the same, whether the death was in Brisbane, Wollongong or Launceston At the very least similar indices should be used to inform the lump sum entitlements e.g. the average weekly earnings in each jurisdiction. The Role of the WorkCover Authority 116. The jurisdictions are largely divided between those administered by an overarching WorkCover Authority and schemes which are more market based, relying heavily on private insurers. The WorkCover model is generally described as a "hybrid" model, while other schemes are "privately underwritten" The "hybrid" model involves an active role of the Authority in underwriting, funds management and premium setting As the name suggests, under "privately underwritten" schemes insurers are able to be licenced to offer compulsory workers compensation cover to employers, to receive premiums and to pay compensation and other benefits under approved policies. The role of the Government Authority is general oversight and regulation. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 16

17 119. There is no linear relationship between the model and scheme efficiency or sustainability. It is also clear that hybrid schemes are generally more closely involved with the political process The Law Council does not have a concluded view as to the appropriate balance between the prevalence of private insurers and the role of a public Authority in any given workers compensation scheme. Materially, it is unlikely to make much difference if a scheme is privately or publicly underwritten, provided other elements are harmonised. Specialist Courts and Tribunals 121. There are a greater range of Courts and Tribunals that deal with workers' compensation and work related common law disputes A logical corollary of a harmonised system is consideration of a common court system, such as a national compensation court, dealing with both workers compensation disputes and personal injuries more generally In addition, standardisation of dispute resolution across jurisdictions would also lead to an national (as opposed to State/Territory) jurisprudence in this area of the law It is accepted that constitutional and other barriers make this a long-term goal. Nevertheless there may be steps that could be taken now to ensure greater uniformity of practice and procedure between jurisdictions. A Broad Consultative Forum 125. The process of moving toward nationally harmonised workers compensation systems will require a federally appointed body to drive the necessary changes In the past, the Head of Workers Compensation Authorities (HOWCA) and the ASCC have made little progress in this area. In 2009, the Federal Government appointed Safe Work Australia to assume the responsibilities of the Australian Safety and Compensation Commission, with a mandate to drive the national harmonisation process in both OHS and workers compensation. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 17

18 127. Unfortunately, the Council of Safe Work Australia is dominated by representatives from the state and territory WorkCover Authorities, with just two representatives appointed by employers representatives and two from workers representatives The legal profession, and the insurance industry are major stakeholders in workers compensation and OHS systems and are able to provide valuable guidance on the workability and effectiveness of different systems in operation around Australia The Law Council considers that a broad consultative forum is the best means of achieving a uniform national approach. This would include representation from the legal profession and the insurance industry as well as from unions, employer groups and workers compensation authorities As I mentioned earlier, workers compensation is a vital safeguard for all Australians It s vital we get this process right. Pragmatic outcomes are a must and the Law Council will continue to fight for a fair, streamlined system of workers compensation in Australia. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 18

19 Disclaimer: This document remains the property of the Law Council of Australia and should not be reproduced without permission. Please contact the Law Council to arrange a copy of this speech. Vanessa Kleinschmidt Director, Communications and Stakeholder Relations m e. Speech_Alex Ward_Tonkin's Workers Compensation Forum_FINAL Page 19

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