The Guardian 2 April, 2008
South Australia: The attempted
destruction of workers’ compensation
Les Birch*
When Michael Wright was the opposition spokesperson for Industrial Relations and Workers Compensation prior to the election of the ALP to government in 2002 in South Australia he was provided with an enormous amount of information from people inside the trade union movement and within the WorkCover Corporation that clearly showed that the scheme was on a downward slide as a consequence of political decisions that had been taken by the Liberal state government and the leadership of the Corporation.
In 2000-01 the WorkCover board and the CEO of the WorkCover Corporation decided to not only reduce the levy rate but also to provide a rebate to employers throughout South Australia.
In 2000-01 Michael Wright attended at least three meetings at the United Trades and Labor Council’s office on South Terrace. On one occasion the then opposition leader, Mike Rann, accompanied Michael Wright. On each occasion Michael Wright gave an absolute assurance that, on election of the ALP to government, the Workers’ Rehabilitation and Compensation Act would be improved to benefit injured workers.
On one occasion Wright stated that should the ALP be elected in 2002 he would have a review conducted of the workers’ compensation scheme within six weeks after being elected and the findings would be introduced through legislative change. The trade union representatives involved in workers’ compensation at the time felt that the timeframe was ambitious but the commitment was welcomed.
On being elected minister, Wright established the Stanley review and the findings were handed down in mid 2002. However, it was not until December 20, 2002 that Minister Wright officially released the findings. They have gathered dust ever since.
Minister Wright is to be condemned for his failure to honour his commitment to the trade union movement and his lack of responsibility in addressing the leadership and management problems within the WorkCover Corporation.
Approximately 18 months ago Treasurer Kevin Foley, supported by representatives of the business sector, stated that there was a problem with WorkCover and that it would be fixed. Treasurer Foley and the chairperson of the WorkCover board, Bruce Carter, decided that the board would put up recommendations to the government to change the WorkCover legislation.
The recommendations that were put forward were extremely draconian. However, Bruce Carter and the majority of the WorkCover board were so confident that the recommendations that they had put to the government would be introduced that the WorkCover management established a unit within the WorkCover Corporation specifically to assist the government in drafting the necessary legislative changes.
In mid 2007, I and another union officials were invited to Minister Wright’s office to discuss our concerns that the Corporation was outsourcing their responsibilities, under section 58B and 58C of the Act, to Employers Mutual which was like putting Dracula in charge of the blood bank. The Minister stated that he shared our concerns but was powerless to do anything about it as it was a Board decision.
During our discussion I raised with Minister Wright the Trade Union movement’s concerns that the Corporation was working on amendments to the legislation that were draconian. He gave his undertaking that while he was minister responsible for workers’ compensation in South Australia he would not introduce legislation that was detrimental to injured workers. History has now shown that Minister Wright has reneged on that undertaking, just as he reneged on his promise in relation to the Stanley review in 2002.
Minister Wright however is not the primary architect behind the proposed legislation that will have dramatic adverse affects on injured workers in this state and undermines the conditions and protection for workers that unions have fought for. Treasurer Foley has played the leading role in promoting the proposed changes to the legislation and is working hand in hand with the business community to ensure their passage through parliament.
This is the man that masquerades as a Laborite but in reality is more conservative than his counterparts in the Liberal Party. This is the man who got it wrong in the Nicole Corns saga, the Port Adelaide bridges, the Victoria Park corporate grandstand and considers South Australians as whingers. His philosophy is more directed at looking after and protecting the business interest of his corporate mates in the business sector than the average working person in this State.
Foley’s cohort, Pat Conlon — purported to be the leader of the left wing of the Labor Party — is another that deserves to be condemned for his involvement in this sorry saga. This fellow espoused working-class socialist left principles for years before he got into parliament. Once elected, however, his ideology changed. If he had voiced his opposition to the proposed legislative changes and used his influence with Rann and Foley injured workers would not be confronted with the harsh and unjust legislation that is currently up for debate in parliament.
Rann, Foley, and Conlon claim that even with the proposed legislative changes, the South Australian workers’ compensation scheme will still be the best in Australia. The reality is that, if passed by parliament, the proposed legislation will be extremely detrimental to injured workers and their families and the business sector will benefit.
Let’s look at the facts and not the political spin:
Injured workers will be forced back to work after 13 weeks. That will lead, in some cases, to workers developing chronic injuries because they will not be able to afford to not be at work.
Injured workers will have even fewer rights to require their employers to provide them with suitable employment or the equivalent. One, if not the most significant reason, for why the Corporation has a large liability is the fact that some employers put barriers to frustrate the return of the injured worker to the workplace to the extent that the worker eventually has to give up. In a lot of instances, workers have to have psychological counselling as a consequence of the employers actions. There is no amendment to the Act to allow punitive action to be taken against an employer who fails to meet their obligations to provide suitable employment after a worker is injured. In actual fact the way the legislation is currently proposed will allow employers further scope to stop injured workers from returning to the workplace where they sustained their injuries.
In 1991 the then Labor government through negotiations with the trade union movement removed common law from the legislation on the proviso that injured workers would essentially be looked after. Irrespective of how serious the negligence of the employer an injured worker cannot sue the employer under common law. The proposed legislative changes however propose that if an injured worker is not totally and permanently incapacitated after 130 weeks he/she will be thrown on to the scrapheap. Again, another betrayal of the Labor Party.
The Rann government is claiming that the families of workers who are killed on the job will be looked after. However, if a worker is terminally ill from a workplace cause and their claim has been delayed and not been accepted prior to the death of the worker, the Corporation will not have to pay out anything to the worker’s family.
The Rann government is making great claims about rehabilitation and return to work coordination i.e. where employers employ more than 30 employees the employer will nominate one employee as the rehabilitation and return to work coordinator. But in reality this person will have no more authority than an occupational health and safety representative. The employer will still have the ultimate say in what actions are taken.
Presently a worker who is issued with a Discontinuance Notice has the right to appeal against the determination and immediately when they lodge a Notice of Dispute the compensating authority is compelled by law to continue paying the worker until the matter is heard in the Tribunal. The proposed legislation will change this and it will mean that the worker will have to lodge a Notice of Dispute which could take up to at least six weeks to be heard before they can argue that payments should continue. This is designed to starve injured workers back to work.
The current Act allows an injured worker to pursue a lump sum payment if, as a consequence of their injuries, the injured bodily parts are permanently impaired (permanent loss of function or disfigurement). There is no threshold level except for industrial deafness (5%). With the new legislation there will be a threshold level of 5% which will, in effect, stop workers who have 4.9% impairment from claiming approximately $6,500. A worker may have sustained four separate injuries and the four are all below the 5% threshold. In effect, under the present legislation they would receive approximately $24,000.00 but under the new legislation they would receive nothing. This will provide a windfall for employers. It is still unclear as to how a person will be assessed to see if they have a loss of function but it does appear that the Rann government is moving towards establishing regulations or "WorkCover guidelines" allowing WorkCover to establish and enforce their own guidelines. This will be like putting the fox in charge of the chicken coop.
The legislation will allow WorkCover to request costs to be awarded against union advocates or officials if it is found that there were delays in the Workers’ Compensation Tribunal proceedings (even if the delay was not their fault). Again, this is another bullying tactic by WorkCover against injured workers and their representatives. From my own observations over many years of practising in the Tribunal the vast majority of delays are caused by Self-Insured Employers, Employers Mutual SA (WorkCover’s agent) of their legal representatives.
Medical panels will be established by WorkCover. Such panels will destroy the rights of injured workers and deny them basic entitlements. The vast majority of doctors in South Australia would not seek to become members of the panel. It is only those that presently provide services to WorkCover (Employers Mutual SA) and self-insured employers who will seek membership as it will be another way to profit at the expense of injured workers.
A WorkCover Ombudsman will be established and at first flush it appears to be a good idea but in reality the ombudsman will be a toothless tiger because he/she will not have the power to prosecute employers for breaking the law.
Premier Rann, when introducing the legislation in parliament, claimed that the proposed new legislation would not apply retrospectively. Clearly his statement was wrong as the majority of the new legislation in its current form is intended to apply retrospectively.
The proposed workers’ compensation legislative amendments demonstrate that the Rann Labor government leadership is prepared to sell out the interests of injured workers to boost its relationship with the South Australian business sector. The primary interest of the Rann government is to look after the financial interests of the business sector to the detriment of working people who traditionally have supported the ALP.
The Rann government’s obsession with maintaining a triple A financial rating is influencing the introduction of policies that betray workers who are forced to depend on the government to protect them. This is a violation and abuse of the trust that was put in that government when it was elected to office and must not be tolerated.
*Les Birch is a Workers’ Compensation Advocate employed for the past 14 years by the Construction, Forestry, Mining and Energy Union. Les has been actively involved in workers’ compensation since 1979 and from April 1987 to June 1994 was a WorkCover board member.