National Council of Self Insurers chair Robin Shaw has criticised Peter Hanks,
QC's endorsement of Vic WorkSafe's efficient component pricing rule (ECPR)
formula (WCR 708).
"The endorsement of WorkSafe's ECPR formula is in reality a proposal for a
new tax on large companies self insuring in Vic. In our opinion, the formula is far
too volatile and confers fee increases on some companies of the order of 600%,
with the majority at least doubling the current fees."
Shaw told WCR Hanks's suggested lift in excess of loss insurance thresholds
would not offset those fee increases. "These latest moves are unlikely to
encourage corporate boards to make long-term investments in Vic, and this
will remain the case as long as there is a perceived bias against self-insurance
(and by inference, large businesses) in Vic govt circles," he said.
Vic self insurers were "frustrated" by the turn of events, Shaw said. Two years
ago the govt referred the contributions formula to a neutral third party - the
Essential Services Cmn (ESC). The ESC generally endorsed the formula proposed
by the Self Insurers Assoc of Vic (SIAV) and, more importantly, the ESC required
accountability from WorkSafe on its expenditure as part of that equation.
"The ECPR approach does not do that. In effect, the Hanks report has discarded
the findings of an independent body brought in by the govt itself that required
transparency from the regulator. It has substituted a discredited economic
model proposed by very the regulator [that] demands massively increased fees."
Shaw said he struggled "to rationalise how such a recommendation came to be
made. The govt called in the ESC, didn't get the answer it wanted, swept the
ESC findings under the carpet and has prevailed on Hanks to recommend the
regulator's preferred model". The Access Economics input to the Hanks review
did not "in my view present a compelling argument in favour of the model, but
rather seems to be simply defensive of it", he said.
SIAV's economic advisor warned that in endorsing the ECPR model, 'the
Hanks review would need to assert either superior insights (or an assessment
of fundamentally different circumstances) to those formed and expressed by
the judgments of economic regulators, tribunals and govts in Aust, NZ and the
UK', Shaw recounted.
"I don't think the Hanks report demonstrates any superior insights to those
of the regulators, govts and judicial bodies here and overseas that have
rejected the ECPR model. Its introduction in the face of evidence that the
ECPR model is discredited will be a most adverse development in the
competitiveness of the Vic economy." Meanwhile, SIAV chair Steve Irving
told WCR the assoc was "concerned" how the Hanks review unfolded. Irving
said SIAV learned late last week that responses to the Hanks report had to
be submitted by last Friday, "when SIAV had been previously advised by
WorkSafe Minister [Tim Holding] that the response period extended to the
end of Oct. This seems to be a poor way to handle such a crucial review".
A spokesperson for Holding was unavailable at presstime.
Workers Compensation Report, Issue 712, October 28, 2008
Showing posts with label Hanks Report. Show all posts
Showing posts with label Hanks Report. Show all posts
Tuesday, 18 November 2008
Thursday, 13 November 2008
The Chief Commissioner and Police Association at odds over the so called workers compensation "black hole".
SGT. HELEN POKE, VICTORIA POLICE: The call came across that one
member was down and one member was missing. We found Sergeant Silk.
He was deceased and had been shot in the head and he was laying on the
ground. We knew that there was another police officer missing. We found
Rod Miller writhing in excruciating pain on the ground. He was fighting his
injuries and trying to give us as much information as he possibly could
about the incident that occurred around the corner. So we comforted him
and reassured him and screamed for ambulances and assistance, which
seemed to take forever.
CHERYL HALL, REPORTER: Helen Poke and Graham Thwaites were the
first police on the scene after the shooting of two colleagues on August 16,
1998. They're part of a group of 29 police officers caught in a legal black hole:
the period between November 1997, when the Kennett government axed
the right to sue for damages relating to personal injury, and October 1999,
when the Bracks government restored their ability to be compensated for
their pain and suffering.
SGT. HELEN POKE: And I pray to God that I don't see another colleague of
mine killed in the line of duty and I have to lay there with him and cradle
his head and tell him he's going to be all right, only to find out two hours later
he's died. That is the most gut-wrenching thing I think I've ever come
across in this job, and there's been no support. Sorry.
CHERYL HALL: They received the full support of the Police Association
this week.Voice of
PAUL MULLETT, SECRETARY OF POLICE ASSOCIATION: As you can see,
members, these issues are affecting each and every one of these people
significantly. The Chief Commissioner should be doing the right thing by
our people, and she's simply not.
CHERYL HALL: Neither Helen Poke or Graham Thwaites have received
an offer of an ex gratia payment for their psychological and physical injuries.
SNR. CONST. GRAHAM THWAITES, VICTORIA POLICE: And, because
I don't have a physical injury, people just go, "Oh, yeah, he's fine." Maybe
I am, but inside I'm certainly a different person than I was when I went to
that nightshift and, as I say, it'll never go away. And all I've asked in all the
times that I've been trying to deal with this, in association with the Police
Association, is that the Chief Commissioner give us fair hearing, and at no
stage has she done that.
CHERYL HALL: The Chief Commissioner says she's made offers to 16 police
officers, four have accepted, while 13 were deemed ineligible for any
compensation. Victoria Police won't say what was offered but the amounts
were based on the NSW crime compensation scheme.
CHRISTINE NIXON, CHIEF COMMISSIONER: The level we offered was
appropriate. We'd previously used this model when we determined to
compensate the officers who were in the Bendigo shootings, and that was
accepted and understood. Their solicitor advised them in those cases to
accept, and we believe that was a good outcome. So we are using that as
the standard, and it's an acceptable standard within and outside policing
that we use this sort of a model. So I'm responsible to the community and
to the members, and what we tried to do is just be fair and reasonable in the
compensation.
CHERYL HALL: Christine Nixon says she has offered to explain the reasons
for her decision to the officers involved.
CHRISTINE NIXON: Many of these members - in fact, all of them - were
supported through workers compensation. They were supported through
counselling. They were given obviously substantial amounts of leave in some
cases to be able to recover from those injuries. So it wasn't as if just nothing
happened and they weren't supported at all. They were and are continuing
to be supported.
CHERYL HALL: The Police Association campaign was timed to follow news
of payouts to people injured by police during protests around the World
Economic Forum in 2000.
CHRISTINE NIXON: I find it a surprise that the Police Association has -
I mean we've been in negotiation. They understand our position. I
understand they produced an ad or some sort of a video, which I think
they've got a perfect right to use members' money in that fashion, but I'm
a bit surprised at that. We've made offers we think are fair and reasonable.
I think sometimes the belief of how much money some members were going
to get was not realistic at all.
CHERYL HALL: The 29 police officers aren't the only casualties of the black hole.
JENNY VEARES, FORMER AMBULANCE DRIVER: I do feel for them.
On the flip side, they are getting more than anybody else, even if it's not
very significant. They are the chosen ones that have been offered this.
I don't understand why they are the chosen ones and why they're different.
CHERYL HALL: Thousands of teachers, nurses, builders and ambulance
officers were also caught up. Jenny Veares's case was part of the ALP
election campaign in 1999. The ambulance she was driving was hit by a truck.
JENNY VEARES: I was knocked out almost instantly. My face hit the steering
wheel. I've had eight rounds of surgery.
CHERYL HALL: Jenny Veares recently received $75,000 from WorkCover
for permanent disability. According to her lawyers, she would have expected
to receive between $300,000 and $500,000 under a successful common
law claim.
JENNY VEARES: I don't see that I did anything wrong that day, and I
don't know why not just me being punished but my children and my
whole family is being punished due to someone else.
MARCUS FOGARTY, SLATER AND GORDON: We saw hundreds of people
injured in that black hole. We had to tell them that they had no rights. It was
gut-wrenching. I had many clients in tears when I've told them that, due to
no fault of their own, they had no rights.
CHERYL HALL: Slater & Gordon estimate up to 5,000 people could make a
claim if all common law rights were restored during the black hole.
At an average claim of $200,000 each, that would add up to a billion dollars.
The moral question for government, employers and insurers is whether this
group of people should be entitled to the same access to compensation as those
injured before and after them, even though there is no legal obligation.
MARCUS FOGARTY: Ultimately that's something for the community to
decide: whether these people should be compensated. If the community
decides that's something that should be done, then the stakeholders,
WorkCover, the state government, should sit around the table and see
if something can be organised for these people. In the meantime, these
seriously injured workers just have to cop it.
Transcript from: ABC Stateline
Broadcast: 09/03/2007
Reporter: Cheryl Hall
member was down and one member was missing. We found Sergeant Silk.
He was deceased and had been shot in the head and he was laying on the
ground. We knew that there was another police officer missing. We found
Rod Miller writhing in excruciating pain on the ground. He was fighting his
injuries and trying to give us as much information as he possibly could
about the incident that occurred around the corner. So we comforted him
and reassured him and screamed for ambulances and assistance, which
seemed to take forever.
CHERYL HALL, REPORTER: Helen Poke and Graham Thwaites were the
first police on the scene after the shooting of two colleagues on August 16,
1998. They're part of a group of 29 police officers caught in a legal black hole:
the period between November 1997, when the Kennett government axed
the right to sue for damages relating to personal injury, and October 1999,
when the Bracks government restored their ability to be compensated for
their pain and suffering.
SGT. HELEN POKE: And I pray to God that I don't see another colleague of
mine killed in the line of duty and I have to lay there with him and cradle
his head and tell him he's going to be all right, only to find out two hours later
he's died. That is the most gut-wrenching thing I think I've ever come
across in this job, and there's been no support. Sorry.
CHERYL HALL: They received the full support of the Police Association
this week.Voice of
PAUL MULLETT, SECRETARY OF POLICE ASSOCIATION: As you can see,
members, these issues are affecting each and every one of these people
significantly. The Chief Commissioner should be doing the right thing by
our people, and she's simply not.
CHERYL HALL: Neither Helen Poke or Graham Thwaites have received
an offer of an ex gratia payment for their psychological and physical injuries.
SNR. CONST. GRAHAM THWAITES, VICTORIA POLICE: And, because
I don't have a physical injury, people just go, "Oh, yeah, he's fine." Maybe
I am, but inside I'm certainly a different person than I was when I went to
that nightshift and, as I say, it'll never go away. And all I've asked in all the
times that I've been trying to deal with this, in association with the Police
Association, is that the Chief Commissioner give us fair hearing, and at no
stage has she done that.
CHERYL HALL: The Chief Commissioner says she's made offers to 16 police
officers, four have accepted, while 13 were deemed ineligible for any
compensation. Victoria Police won't say what was offered but the amounts
were based on the NSW crime compensation scheme.
CHRISTINE NIXON, CHIEF COMMISSIONER: The level we offered was
appropriate. We'd previously used this model when we determined to
compensate the officers who were in the Bendigo shootings, and that was
accepted and understood. Their solicitor advised them in those cases to
accept, and we believe that was a good outcome. So we are using that as
the standard, and it's an acceptable standard within and outside policing
that we use this sort of a model. So I'm responsible to the community and
to the members, and what we tried to do is just be fair and reasonable in the
compensation.
CHERYL HALL: Christine Nixon says she has offered to explain the reasons
for her decision to the officers involved.
CHRISTINE NIXON: Many of these members - in fact, all of them - were
supported through workers compensation. They were supported through
counselling. They were given obviously substantial amounts of leave in some
cases to be able to recover from those injuries. So it wasn't as if just nothing
happened and they weren't supported at all. They were and are continuing
to be supported.
CHERYL HALL: The Police Association campaign was timed to follow news
of payouts to people injured by police during protests around the World
Economic Forum in 2000.
CHRISTINE NIXON: I find it a surprise that the Police Association has -
I mean we've been in negotiation. They understand our position. I
understand they produced an ad or some sort of a video, which I think
they've got a perfect right to use members' money in that fashion, but I'm
a bit surprised at that. We've made offers we think are fair and reasonable.
I think sometimes the belief of how much money some members were going
to get was not realistic at all.
CHERYL HALL: The 29 police officers aren't the only casualties of the black hole.
JENNY VEARES, FORMER AMBULANCE DRIVER: I do feel for them.
On the flip side, they are getting more than anybody else, even if it's not
very significant. They are the chosen ones that have been offered this.
I don't understand why they are the chosen ones and why they're different.
CHERYL HALL: Thousands of teachers, nurses, builders and ambulance
officers were also caught up. Jenny Veares's case was part of the ALP
election campaign in 1999. The ambulance she was driving was hit by a truck.
JENNY VEARES: I was knocked out almost instantly. My face hit the steering
wheel. I've had eight rounds of surgery.
CHERYL HALL: Jenny Veares recently received $75,000 from WorkCover
for permanent disability. According to her lawyers, she would have expected
to receive between $300,000 and $500,000 under a successful common
law claim.
JENNY VEARES: I don't see that I did anything wrong that day, and I
don't know why not just me being punished but my children and my
whole family is being punished due to someone else.
MARCUS FOGARTY, SLATER AND GORDON: We saw hundreds of people
injured in that black hole. We had to tell them that they had no rights. It was
gut-wrenching. I had many clients in tears when I've told them that, due to
no fault of their own, they had no rights.
CHERYL HALL: Slater & Gordon estimate up to 5,000 people could make a
claim if all common law rights were restored during the black hole.
At an average claim of $200,000 each, that would add up to a billion dollars.
The moral question for government, employers and insurers is whether this
group of people should be entitled to the same access to compensation as those
injured before and after them, even though there is no legal obligation.
MARCUS FOGARTY: Ultimately that's something for the community to
decide: whether these people should be compensated. If the community
decides that's something that should be done, then the stakeholders,
WorkCover, the state government, should sit around the table and see
if something can be organised for these people. In the meantime, these
seriously injured workers just have to cop it.
Transcript from: ABC Stateline
Broadcast: 09/03/2007
Reporter: Cheryl Hall
Monday, 10 November 2008
Workcover under attack
On October 8, around 500 workplace delegates and occupational health and
safety representatives attended a meeting called by the Victorian Trades
Hall Council (VTHC).
The meeting was called in response to a list of changes to the current Work
Cover legislation recommended by Peter Hanks QC, commissioned last year
to conduct an inquiry into the 1985 Workers Compensation Act.
The government of then-premier Jeff Kennett made a number of changes
to Victoria’s Accident Compensation Act, greatly reducing injured workers’
access to compensation and decreasing their entitlements. It was not until
2006 that the state Labor government declared it would “review the
Accident Compensation Act 1985 to ensure workers receive the assistance,
support and benefits they deserve”.
Now, after nine years of promises, Hanks’ final report seeks to further
diminish the entitlements of injured workers. Among the proposals made
is a change in the law to exclude workers from stress-related claims, if the
stress comes from any “reasonable management action”.
According to the VTHC this will knock out 90% of claims. Unions say all
injuries should be covered by a “no-fault” system. Hanks also proposes
occupational health and safety reps, instead of unions, advocate for injured
workers returning to work, effectively strengthening employers’ ability to
deny workers the right to return to their jobs.
It also proposes to strip the present dispute resolution system
and have courts to hear disputes — a process that would add years to
dispute resolution and leave workers without money and medical treatment.
The meeting moved a motion opposing all recommendations not considered
by the unions to be in the best interests of workers and demanded that the
government reach agreement with the VTHC on key issues. If these demands
are not met, the VTHC has vowed to take further action.
From: Alistair McKinnon, Melbourne,11 October ,2008.
Australian News, Green Left Weekly issue #770 15 October 2008.
safety representatives attended a meeting called by the Victorian Trades
Hall Council (VTHC).
The meeting was called in response to a list of changes to the current Work
Cover legislation recommended by Peter Hanks QC, commissioned last year
to conduct an inquiry into the 1985 Workers Compensation Act.
The government of then-premier Jeff Kennett made a number of changes
to Victoria’s Accident Compensation Act, greatly reducing injured workers’
access to compensation and decreasing their entitlements. It was not until
2006 that the state Labor government declared it would “review the
Accident Compensation Act 1985 to ensure workers receive the assistance,
support and benefits they deserve”.
Now, after nine years of promises, Hanks’ final report seeks to further
diminish the entitlements of injured workers. Among the proposals made
is a change in the law to exclude workers from stress-related claims, if the
stress comes from any “reasonable management action”.
According to the VTHC this will knock out 90% of claims. Unions say all
injuries should be covered by a “no-fault” system. Hanks also proposes
occupational health and safety reps, instead of unions, advocate for injured
workers returning to work, effectively strengthening employers’ ability to
deny workers the right to return to their jobs.
It also proposes to strip the present dispute resolution system
and have courts to hear disputes — a process that would add years to
dispute resolution and leave workers without money and medical treatment.
The meeting moved a motion opposing all recommendations not considered
by the unions to be in the best interests of workers and demanded that the
government reach agreement with the VTHC on key issues. If these demands
are not met, the VTHC has vowed to take further action.
From: Alistair McKinnon, Melbourne,11 October ,2008.
Australian News, Green Left Weekly issue #770 15 October 2008.
Monday, 27 October 2008
The Hanks Review - Objections by Injured Workers
Please forward your objections to any of the changes recommended in the
Hanks Report to Mr Rose at : act_review@worksafe.vic.gov.au
Hanks Report to Mr Rose at : act_review@worksafe.vic.gov.au
Mr Holdings "Stakeholder Reference Group"
Peter Hanks QC will meet and consult regularly with a stakeholder
reference group established by the Minister.
The Stakeholder Reference Group consists of the following members:
Victorian Trades Hall Council (VTHC)
Brian Boyd
Secretary, VTHC
Graham Bird
Federal and Victorian Secretary, Australian Meat Industry
Employees' Union (AMIEU)
Cesar Melhem
Victorian Branch Secretary, Australian Workers Union (AWU)
Victorian Employers Chamber of Commerce and Industry (VECCI)
Wayne Kayler-Thomson
CEO
Australian Industry Group (AIG)
Tim Piper
Victorian Branch Director
Self Insurers Association of Victoria (SIAV)
Steve Irving
Chairperson
Australian Medical Association (AMA)
Jane Stephens
CEO
Law Institute of Victoria (LIV)
Michael Brett Young
CEO
Australian Lawyers Alliance (ALA)
Marcus Fogarty
Representative
Elana Rubin, Chairperson of WorkSafe Victoria, will chair the Stakeholder
Reference Group.
WCV: We are extremely concerned there is no injured workers involved
in this stakehokder reference group.
How are the workers rights being represented amongst this group?
There Not!
Its ironic that the decisions these groups make, will directly
effect all injured workers in Victoria, yet none are or have been
represented at this level.
How can a group of individuals make informed decsions about other
peoples lives when they themselves have never experianced what its like
to be a workcover recipient. Honestly, what would they know!!!!!
This is an injustice!
reference group established by the Minister.
The Stakeholder Reference Group consists of the following members:
Victorian Trades Hall Council (VTHC)
Brian Boyd
Secretary, VTHC
Graham Bird
Federal and Victorian Secretary, Australian Meat Industry
Employees' Union (AMIEU)
Cesar Melhem
Victorian Branch Secretary, Australian Workers Union (AWU)
Victorian Employers Chamber of Commerce and Industry (VECCI)
Wayne Kayler-Thomson
CEO
Australian Industry Group (AIG)
Tim Piper
Victorian Branch Director
Self Insurers Association of Victoria (SIAV)
Steve Irving
Chairperson
Australian Medical Association (AMA)
Jane Stephens
CEO
Law Institute of Victoria (LIV)
Michael Brett Young
CEO
Australian Lawyers Alliance (ALA)
Marcus Fogarty
Representative
Elana Rubin, Chairperson of WorkSafe Victoria, will chair the Stakeholder
Reference Group.
WCV: We are extremely concerned there is no injured workers involved
in this stakehokder reference group.
How are the workers rights being represented amongst this group?
There Not!
Its ironic that the decisions these groups make, will directly
effect all injured workers in Victoria, yet none are or have been
represented at this level.
How can a group of individuals make informed decsions about other
peoples lives when they themselves have never experianced what its like
to be a workcover recipient. Honestly, what would they know!!!!!
This is an injustice!
ACA Review Discussion Paper
Discussion Paper
Following the December 2007 announcement of an independent Review
of Victoria’s Accident Compensation Act 1985 and associated legislation,
the Review has developed a Discussion Paper to provide information
and raise issues about Victoria’s workers compensation scheme.
The Accident Compensation Act Review discussion paper is available
for download here. Discussion paper
Following the December 2007 announcement of an independent Review
of Victoria’s Accident Compensation Act 1985 and associated legislation,
the Review has developed a Discussion Paper to provide information
and raise issues about Victoria’s workers compensation scheme.
The Accident Compensation Act Review discussion paper is available
for download here. Discussion paper
Public Comments made for Accident Compensation Act Review
Public Comments made for the review completed by Mr Hanks QC.
All of the following companies and individuals sent in submissions
outlining their objections. For access to their comments follow the
attached link.
Accident Compensation Conciliation Service
Air Conditioning and Mechanical Contractors' Association of Australia
Allan Aitchison
AFOEM ANZSOM
Anna Dominguez Smith
Dr Anthony J Buzzard
Anthony Smeaton
Anthea MacTiernan
Australian Education Union
Australian Higher Education Industrial Association
Australian Lawyers Alliance
Australian Manufacturers Workers Union Metals Division
Australian Services Union
Australian Nursing Federation
Australasian Meat Industry Employees Union Victorian Branch
Australian Industry Group
Australian Physiotherapy Association
Australian Rehabilitation Providers Association
Australian Manufacturing Workers' Union Vehicle Division
Australian Manufacturers Workers Union Metals Division
Barrett Burston Malting Co Pty Ltd
Brendon Johnson
Brighton Spinal Group
CARE Group
Chelgrave Contracting
Chiropractic & Osteopathic College of Australasia
Compensation Law Bar Association
Common Law Bar Association
Community and Public Sector Union
Country Fire Authority
Convenor of Medical Panels
County Court of Victoria
Dr H Sutcliffe
Elsa Underhill
Evelyn Field
Evert Van Der Steeg
Farshad Khajenouri
Furnishing Industry Association of Australia
Geoff Provis
Geoffrey Piper
Gordon R Merigan
Harwood Andrews Lawyers
Holding Redlich Lawyers
Industrial Deaths Support & Advocacy Inc
Injured Nurses Support Group
Jeremy Harvey
Joseph Gagliano
Jobwatch
Judith Willis
K E Forbes
Keith E Kerr
Master Plumbers' and Mechanical Services Association Victoria
M O'Loghlen QC
Magistrates Court of Victoria
Maritime Union of Australia
Master Grocers of Australia
Melbourne Audiology Centre
Michael Roche
Michelle Westwood
Municipal Association Victoria
Middletons
National Union of Workers
New Care
Ombudsman Victoria
Oncall Personnel
Recruitment & Consulting Services Association
ResWorks
Robert Kernohan
Self Insurers Association Victoria
Shop Distributive & Allied Employees Association
Sue Hosking
Textile Clothing & Footwear Union of Australia
The Faculty of Pain Medicine & The Australian Pain Society
Tim Johnston
Timber Merchants Association
Timber Merchants Association (2)
Vatmi Industries
Victorian Brain Injury Recovery Association
Victorian Automobile Chamber of Commerce
Victorian Employers Chamber of Commerce and Industry
Victorian Farmers Federation
Victorian Local Governance Association
Victorian Independent Education Union
Victoria Police
Victorian Trades Hall Council
Workers Occupational Health Centre
WV Management Pty Ltd
All of the following companies and individuals sent in submissions
outlining their objections. For access to their comments follow the
attached link.
Accident Compensation Conciliation Service
Air Conditioning and Mechanical Contractors' Association of Australia
Allan Aitchison
AFOEM ANZSOM
Anna Dominguez Smith
Dr Anthony J Buzzard
Anthony Smeaton
Anthea MacTiernan
Australian Education Union
Australian Higher Education Industrial Association
Australian Lawyers Alliance
Australian Manufacturers Workers Union Metals Division
Australian Services Union
Australian Nursing Federation
Australasian Meat Industry Employees Union Victorian Branch
Australian Industry Group
Australian Physiotherapy Association
Australian Rehabilitation Providers Association
Australian Manufacturing Workers' Union Vehicle Division
Australian Manufacturers Workers Union Metals Division
Barrett Burston Malting Co Pty Ltd
Brendon Johnson
Brighton Spinal Group
CARE Group
Chelgrave Contracting
Chiropractic & Osteopathic College of Australasia
Compensation Law Bar Association
Common Law Bar Association
Community and Public Sector Union
Country Fire Authority
Convenor of Medical Panels
County Court of Victoria
Dr H Sutcliffe
Elsa Underhill
Evelyn Field
Evert Van Der Steeg
Farshad Khajenouri
Furnishing Industry Association of Australia
Geoff Provis
Geoffrey Piper
Gordon R Merigan
Harwood Andrews Lawyers
Holding Redlich Lawyers
Industrial Deaths Support & Advocacy Inc
Injured Nurses Support Group
Jeremy Harvey
Joseph Gagliano
Jobwatch
Judith Willis
K E Forbes
Keith E Kerr
Master Plumbers' and Mechanical Services Association Victoria
M O'Loghlen QC
Magistrates Court of Victoria
Maritime Union of Australia
Master Grocers of Australia
Melbourne Audiology Centre
Michael Roche
Michelle Westwood
Municipal Association Victoria
Middletons
National Union of Workers
New Care
Ombudsman Victoria
Oncall Personnel
Recruitment & Consulting Services Association
ResWorks
Robert Kernohan
Self Insurers Association Victoria
Shop Distributive & Allied Employees Association
Sue Hosking
Textile Clothing & Footwear Union of Australia
The Faculty of Pain Medicine & The Australian Pain Society
Tim Johnston
Timber Merchants Association
Timber Merchants Association (2)
Vatmi Industries
Victorian Brain Injury Recovery Association
Victorian Automobile Chamber of Commerce
Victorian Employers Chamber of Commerce and Industry
Victorian Farmers Federation
Victorian Local Governance Association
Victorian Independent Education Union
Victoria Police
Victorian Trades Hall Council
Workers Occupational Health Centre
WV Management Pty Ltd
Sunday, 26 October 2008
CONSULTATION ON THE FINAL REPORT OF THE ACCIDENT COMPENSATION ACT REVIEW
WCV's: Isn't this typical of Holding and his office
We here at workcover victims were not informed of these meetings
by Holdings office or via any advertising and they all have my
email & postal address.
We are assuming that Mr Holding wants no opposition to this report
so he chose not to tell anyone about the public meetings!!!
We can still effect any of these changes by forwarding our objections
via email. The address is printed at the bottom of this post.
Following the release of the Final Report of the Accident Compensation
Act Review by the Hon. Tim Holding MP, Minister for Finance,
WorkCover and the Transport Accident Commission, the Government
is seeking feedback from the community on the recommendations for
change which have been made by Peter Hanks QC, who conducted
the review.
The Hanks Report contains over 150 recommendations for change,
and providing an opportunity for further consultation will assist in
the development of the Government’s response to the Report’s
recommendations.
The Government has appointed Mr Peter Rose to lead the consultation.
Mr Rose has been involved as a lead adviser to a number of Australian
Government insurance reviews and has also advised the Victorian
Government on insurance issues. Mr Rose will provide an opportunity
for the community to provide feedback at a number of community open
forums as follows:
20 October 2008
Melbourne CBD
8.30 -10.30am
Telstra Conference Centre Theatrette, Level 1, 242 Exhibition St, Melbourne
20 October 2008
Bendigo
3 - 5pm
Quality Resort, All Seasons Bendigo, 171-183 McIvor Rd, Bendigo
21 October 2008
Traralgon
3 ? 5pm
Quality Inn, Latrobe Convention Centre,
5601 Princes Hwy, Traralgon
To secure your place at any of the forums, please register your interest by:
Telephone: (03) 9641 1904 or
Email: act_review@worksafe.vic.gov.au
Registrations close on Friday 17 October 2008.
If you are unable to attend the forums, however would like to provide
comments on the recommendations contained in the Hanks Report, please
forward your comments to act_review@worksafe.vic.gov.au by close of
business, 24 October 2008.
Electronic copies of the Hanks Report are available
at www.compensationreview.vic.gov.au
Printed copies can be requested by email to
act_review@worksafe.vic.gov.au
Further information about the Review, its Terms of Reference and copies
of public submissions are also available at www.compensationreview.vic.gov.au
We here at workcover victims were not informed of these meetings
by Holdings office or via any advertising and they all have my
email & postal address.
We are assuming that Mr Holding wants no opposition to this report
so he chose not to tell anyone about the public meetings!!!
We can still effect any of these changes by forwarding our objections
via email. The address is printed at the bottom of this post.
Following the release of the Final Report of the Accident Compensation
Act Review by the Hon. Tim Holding MP, Minister for Finance,
WorkCover and the Transport Accident Commission, the Government
is seeking feedback from the community on the recommendations for
change which have been made by Peter Hanks QC, who conducted
the review.
The Hanks Report contains over 150 recommendations for change,
and providing an opportunity for further consultation will assist in
the development of the Government’s response to the Report’s
recommendations.
The Government has appointed Mr Peter Rose to lead the consultation.
Mr Rose has been involved as a lead adviser to a number of Australian
Government insurance reviews and has also advised the Victorian
Government on insurance issues. Mr Rose will provide an opportunity
for the community to provide feedback at a number of community open
forums as follows:
20 October 2008
Melbourne CBD
8.30 -10.30am
Telstra Conference Centre Theatrette, Level 1, 242 Exhibition St, Melbourne
20 October 2008
Bendigo
3 - 5pm
Quality Resort, All Seasons Bendigo, 171-183 McIvor Rd, Bendigo
21 October 2008
Traralgon
3 ? 5pm
Quality Inn, Latrobe Convention Centre,
5601 Princes Hwy, Traralgon
To secure your place at any of the forums, please register your interest by:
Telephone: (03) 9641 1904 or
Email: act_review@worksafe.vic.gov.au
Registrations close on Friday 17 October 2008.
If you are unable to attend the forums, however would like to provide
comments on the recommendations contained in the Hanks Report, please
forward your comments to act_review@worksafe.vic.gov.au by close of
business, 24 October 2008.
Electronic copies of the Hanks Report are available
at www.compensationreview.vic.gov.au
Printed copies can be requested by email to
act_review@worksafe.vic.gov.au
Further information about the Review, its Terms of Reference and copies
of public submissions are also available at www.compensationreview.vic.gov.au
Saturday, 25 October 2008
WORKERS COMPENSATION LEGISLATION REVIEW RELEASED FOR CONSULTATION
Friday, 26 September 2008
An independent review into Victoria’s workers compensation legislation
was released for community consultation today. Minister for WorkCover,
Tim Holding, said the independent review was conducted by Peter Hanks QC.
Mr Hanks consulted widely throughout the process of producing his report,
receiving over 150 submissions and engaging in over 100 hours of face-to-face
consultation. “This is the first independent Review of Victoria’s workers
compensation legislation in over 20 years,” Mr Holding said.
“I thank Mr Hanks for his work as we now embark on a period of further
consultation to assist in the development of the Government’s response
to the report’s recommendations.“While we have the best workers
compensation system of any jurisdiction in Australia, we will look to this
process for further ways to improve the support and services provided
to injured workers and reduce the administrative burden on Victoria’s
employers.
”The review contains over 150 recommendations that will be the subject
of further consultation.Mr Holding said the Government would
receive and consider feedback from the community before
commenting on the report’s recommendations.( Make sure you
do Mr Holding)
The Government has appointed Mr Peter Rose to lead the
consultation. Mr Rose has been involved as a lead adviser
to a number of Australian Government insurance reviews
and has also advised the Victorian Government on insurance
issues.
WCV's: All injured workers need to write to Mr Rose with our
complaints and free will letters to prevent many of the unfair
and unreasonable review suggestions form being implemented
“The Government will also review the financial and operational viability
of the recommendations to ensure the Government response is affordable,
sustainable and appropriate,” Mr Holding said.
Electronic copies of the Hanks Report will be available
at http://www.compensationreview.vic.gov.au/
Printed copies can be requested by email to act_review@worksafe.vic.gov.au
An independent review into Victoria’s workers compensation legislation
was released for community consultation today. Minister for WorkCover,
Tim Holding, said the independent review was conducted by Peter Hanks QC.
Mr Hanks consulted widely throughout the process of producing his report,
receiving over 150 submissions and engaging in over 100 hours of face-to-face
consultation. “This is the first independent Review of Victoria’s workers
compensation legislation in over 20 years,” Mr Holding said.
“I thank Mr Hanks for his work as we now embark on a period of further
consultation to assist in the development of the Government’s response
to the report’s recommendations.“While we have the best workers
compensation system of any jurisdiction in Australia, we will look to this
process for further ways to improve the support and services provided
to injured workers and reduce the administrative burden on Victoria’s
employers.
”The review contains over 150 recommendations that will be the subject
of further consultation.Mr Holding said the Government would
receive and consider feedback from the community before
commenting on the report’s recommendations.( Make sure you
do Mr Holding)
The Government has appointed Mr Peter Rose to lead the
consultation. Mr Rose has been involved as a lead adviser
to a number of Australian Government insurance reviews
and has also advised the Victorian Government on insurance
issues.
WCV's: All injured workers need to write to Mr Rose with our
complaints and free will letters to prevent many of the unfair
and unreasonable review suggestions form being implemented
“The Government will also review the financial and operational viability
of the recommendations to ensure the Government response is affordable,
sustainable and appropriate,” Mr Holding said.
Electronic copies of the Hanks Report will be available
at http://www.compensationreview.vic.gov.au/
Printed copies can be requested by email to act_review@worksafe.vic.gov.au
Friday, 3 October 2008
The Hanks Report
Well, here it is! Just click on the link.
Injured workers need to know how they will be affected by this report
Its a big read but Please post your thoughts?
http://www.compensationreview.vic.gov.au/wps/wcm/resources/file/eb1e45497dc5560/Guide%20to%20the%20Hanks%20Report.pdf
http://www.compensationreview.vic.gov.au/wps/wcm/resources/file/eb1e43497d7d1e4/Accident%20Compensation%20Act%20Review%20-%20Hanks%20Report.pdf
Injured workers need to know how they will be affected by this report
Its a big read but Please post your thoughts?
http://www.compensationreview.vic.gov.au/wps/wcm/resources/file/eb1e45497dc5560/Guide%20to%20the%20Hanks%20Report.pdf
http://www.compensationreview.vic.gov.au/wps/wcm/resources/file/eb1e43497d7d1e4/Accident%20Compensation%20Act%20Review%20-%20Hanks%20Report.pdf
Saturday, 20 September 2008
WCV's response to Mr Holding re: fixworkcover campaign letter
Dear Mr Holding,
Thank you for you correspondence received August 7th 2008 in relation to
my letter sent via the VTHC website.
I was led to believe that Mr Hanks QC would be providing the government his
report this month? Can you please verify to WCV’s what date we can expect this
report to be made available to the public?
I am extremely concerned about your understanding of my recent correspondence
as I believe that my concerns more than peripherally relate to the objects of this
review.
I have personally been effected by this system and fully understand and
comprehend the changes Mr Hanks will make and its effect on my families lives.
So for your total understanding of my correspondence I have discussed my
concerns and complaints further so as; I may receive your total understanding
of the issues raised.
The VWA claims that psychological and psychiatric injuries are a major problem
and its right. Psychological and psychiatric injuries inflict massive suffering on
the 3,000 workers who receive stress injuries at work each year.
The Review being conducted by Mr Hanks QC wants to solve the problem by
taking most stress claims out of the system as a "work-place injury".
Mr Hanks also said that a psychological and psychiatric injury that arises
from any “reasonable management action” shouldn’t count as a work-place
injury.
Of course from WorkSafe’s point of view this would solve this problem, and if
these changes are passed then an injured worker would be left on the scrap heap
without medical care or financial support. The Review also wants to force these
workers to take part in mediation and/or workplace counselling before liability
for their claim is considered.
The VTHC says including “any reasonable management action” as a reason to
not accept claims discriminates against injured workers with psychological and
psychiatric injuries, and will result in the vast majority of stress claims not being accepted.Worksafe Victoria holds the record for rejecting new claims by injured
workers. It rejects 14.1% per year when in Queensland, only 3.8 % are rejected.
Worksafe Victoria is the most profitable system of workers compensation in Australia.
It makes a profit of more that $1 billion a year and pays more than $700 million
a year into state government coffers.
Since 2004 Worksafe has cut employers premiums by 45% saving them $2 billion
and despite WorkSafe’s profits and its gifts to employers and its support of country
football it still fails to provide quality care for injured workers.
Under the Hanks recommendations premiums will be cut by another 6% reducing
even further, the funds available to care for injured workers. What’s wrong with
this picture?
We here at Workcover Victims and the Trades Hall Council want every
Victorian to let the government know that it's time Worksafe was for workers,
not for employers and to include the following inclusions into its changes and
provide some form of protection for injured workers in Victoria.
1. Increase Weekly Payments
Currently, injured workers' weekly benefits are cut after 130 weeks, unless
they are able to demonstrate that they have "no work capacity" for any
employment and that this incapacity is likely to continue indefinitely.
The VTHC says the period of entitlement to weekly benefits should be
increased to 260 weeks, or five years.
How much should injured workers get?
The Victorian system of weekly payments is one of the worst in Australia.
The Hanks Review refused to examine the payments regime and made only
one slight improvement. Currently workers get 95% of pre-injury average
weekly earnings (PIAWE) including overtime for 13 weeks, then 75% up to
26 weeks, then 75% (less overtime) until 130 weeks.
The only change that Hanks has recommended is that after 13 weeks the
percentage increases to 80%.
The VTHC says that there should be an increase in the level of weekly
payments to 100% of PIAWE for the first 12 months, then 80% for the
duration of the entitlement period.
How should the payments be calculated?
The current manner, in which PIAWE is calculated whilst including piece work,
does not include allowances, commissions, bonuses, salary packaging etc.
This means that effective rates of weekly payments often fall well below the
current 95% and 75% rates in the Act. The VTHC says the calculation should
be based upon "normal weekly earnings" that incorporates pay structures,
including overtime, shift penalties and all other benefits and not based solely
on ordinary rates of pay for normal hours worked.
2. Make Automatic Payments.The delays that exist between a worker being
injured and getting their first weekly payment causes major financial hardship
and means that vital medical and rehabilitative services are delayed.
The VTHC says full provisional liability should be introduced to provide weekly
benefits and medical and like expenses within 7 days of a claim being made.
3. Cover All Stress Injuries.The Workcover Authority claims that
psychological/psychiatric injuries are a major problem. It's right;
these injuries inflict massive suffering on the workers who have them.
Mr Hanks wants to solve the problem by taking most stress claims out of
the system as a work-place injury that workers receive compensation for
from Workcover. He says a psychological/psychiatric injury that arises from
any "reasonable management action" shouldn't count as a work-place injury.
From Workcover’s point of view this would solve the problem, but a worker
would be left on the scrap-heap without medical care or financial support.
Every year about 3000 people receive stress injuries at work. The Review
also wants to force these workers to take part in mediation and/or workplace
counselling before liability for their claim is considered. The VTHC says
including "any reasonable management action" as a reason to not accept
claims discriminates against injured workers with psychological/psychiatric
injuries, and will result in the vast majority of stress claims not being accepted.
4. Improve Dispute Resolution Process.If your right to be compensated for a
work-place injury is challenged, your first port of call is the Accident
Compensation Conciliation Service (ACCS). But now, the toothless tiger
may be stripped of its few remaining powers and reduced to a mere talking
shop. Although it's been a toothless tiger for years, it is still a place where
injured workers can make some progress in claiming their rights.
Mr Hanks wants the have the ACCS's powers reduced so that it's a mere
talking shop and have Workcover dictate most of what it does. This would
see at least an extra 6000 claims being forced into the courts for resolution.
The VTHC estimates it will cost workers and employers at least an extra
$60 million a year. This means $30 million each more than the current system.
It would be a lawyers' picnic. It would blow-out the delays in court resolutions
of Workcover claims by at least two years. And extend the suffering and delay
medical treatment for injured workers. It would stop the treatment of injuries
that should be treated and fixed quickly. It would turn basic ordinary injuries
into a battle ground that would prevent workers from pursuing their claims
and create a financial gift to lawyers. For Injuries that could be fixed fast and
the worker back to work quickly, it would extend the process into a complex
legal battle that would mean that the injuries would become long-term and
chronic. This is an ill-considered and, in practice, a mad plan.
The VTHC says workers' claims must be resolved quickly. Unions want a
one-stop shop that has the power to conciliate issues - and - if that fails,
arbitrate. The unions' solution is speedy, simple, fair and economically
efficient. It would deliver the best results for workers and employers.
5. Improve Return to Work Rights for WorkersMr Hanks proposes to remove
from the law most, if not all, of the employer obligations in the return to work
process and move them to guidance material, regulations and codes of
compliance. He also proposes that OH&S reps be the ONLY people -
apart from the injured worker - who can represent an injured worker
in the return to work process. This is a fundamental attack on an injured
worker's right to make their own decision about who represents them at
a critical period in their life. The VTHC says the obligations must remain
in the Act, an injured worker should be able to choose anyone to represent
them and the whole process must be reformed to improve the rights of injured
workers, increase the obligations on employers to return injured workers
to meaningful work.
6. Stop Discrimination.Injured workers are amongst the most discriminated
against groups in the community. But it doesn't just start after they lodge their
Workcover, it can happen if their employer thinks they are going to lodge a
claim. And it isn't just the injured worker who faces discrimination, it can
include anyone who encourages or helps an injured to lodge a claim.
Mr Hanks merely wants to bring the Workcover Act's anti-discrimination
provisions into line with the OHS Act. This doesn't go far enough. The VTHC
says the Act must be changed to prevent all forms of discrimination against
the injured worker or work-mates that may be assisting them in their claim.
7. Bring Outworkers inOutworkers are the most vulnerable workers in Victoria.
Their hours are long and they are regularly the victims of unscrupulous
employers. Mr Hanks says the Act merely needs to be clarified to properly
cover outworkers. But this does not go far enough. Even if it is clarified, the
law won't address the sham working arrangements forced on outworkers
by their employers. The VTHC says existing provisions need not only to
be clarified but also changed to ensure coverage for outworkers. Protection
should not be limited to natural persons and sole employee companies but
should also extend to all sham arrangements.
Now Mr Holding, do my comments only peripherally relate to the objects
of the review?
I have clearly outlined my expectations of this system and its review.
Yours Sincerely,
Workcover Victims
Now after writing the above letter to Mr Holding he hasn't even bothered to
respond too it?
If he is going to continue to ignore his responsibilities then he should be
removed from his office because he is ignoring the very people he was
employed to help!
If you cant take the criticism Mr Holding then resign your position and allow
someone to take over who cares about their job and the injured workers of
Victoria!
Thank you for you correspondence received August 7th 2008 in relation to
my letter sent via the VTHC website.
I was led to believe that Mr Hanks QC would be providing the government his
report this month? Can you please verify to WCV’s what date we can expect this
report to be made available to the public?
I am extremely concerned about your understanding of my recent correspondence
as I believe that my concerns more than peripherally relate to the objects of this
review.
I have personally been effected by this system and fully understand and
comprehend the changes Mr Hanks will make and its effect on my families lives.
So for your total understanding of my correspondence I have discussed my
concerns and complaints further so as; I may receive your total understanding
of the issues raised.
The VWA claims that psychological and psychiatric injuries are a major problem
and its right. Psychological and psychiatric injuries inflict massive suffering on
the 3,000 workers who receive stress injuries at work each year.
The Review being conducted by Mr Hanks QC wants to solve the problem by
taking most stress claims out of the system as a "work-place injury".
Mr Hanks also said that a psychological and psychiatric injury that arises
from any “reasonable management action” shouldn’t count as a work-place
injury.
Of course from WorkSafe’s point of view this would solve this problem, and if
these changes are passed then an injured worker would be left on the scrap heap
without medical care or financial support. The Review also wants to force these
workers to take part in mediation and/or workplace counselling before liability
for their claim is considered.
The VTHC says including “any reasonable management action” as a reason to
not accept claims discriminates against injured workers with psychological and
psychiatric injuries, and will result in the vast majority of stress claims not being accepted.Worksafe Victoria holds the record for rejecting new claims by injured
workers. It rejects 14.1% per year when in Queensland, only 3.8 % are rejected.
Worksafe Victoria is the most profitable system of workers compensation in Australia.
It makes a profit of more that $1 billion a year and pays more than $700 million
a year into state government coffers.
Since 2004 Worksafe has cut employers premiums by 45% saving them $2 billion
and despite WorkSafe’s profits and its gifts to employers and its support of country
football it still fails to provide quality care for injured workers.
Under the Hanks recommendations premiums will be cut by another 6% reducing
even further, the funds available to care for injured workers. What’s wrong with
this picture?
We here at Workcover Victims and the Trades Hall Council want every
Victorian to let the government know that it's time Worksafe was for workers,
not for employers and to include the following inclusions into its changes and
provide some form of protection for injured workers in Victoria.
1. Increase Weekly Payments
Currently, injured workers' weekly benefits are cut after 130 weeks, unless
they are able to demonstrate that they have "no work capacity" for any
employment and that this incapacity is likely to continue indefinitely.
The VTHC says the period of entitlement to weekly benefits should be
increased to 260 weeks, or five years.
How much should injured workers get?
The Victorian system of weekly payments is one of the worst in Australia.
The Hanks Review refused to examine the payments regime and made only
one slight improvement. Currently workers get 95% of pre-injury average
weekly earnings (PIAWE) including overtime for 13 weeks, then 75% up to
26 weeks, then 75% (less overtime) until 130 weeks.
The only change that Hanks has recommended is that after 13 weeks the
percentage increases to 80%.
The VTHC says that there should be an increase in the level of weekly
payments to 100% of PIAWE for the first 12 months, then 80% for the
duration of the entitlement period.
How should the payments be calculated?
The current manner, in which PIAWE is calculated whilst including piece work,
does not include allowances, commissions, bonuses, salary packaging etc.
This means that effective rates of weekly payments often fall well below the
current 95% and 75% rates in the Act. The VTHC says the calculation should
be based upon "normal weekly earnings" that incorporates pay structures,
including overtime, shift penalties and all other benefits and not based solely
on ordinary rates of pay for normal hours worked.
2. Make Automatic Payments.The delays that exist between a worker being
injured and getting their first weekly payment causes major financial hardship
and means that vital medical and rehabilitative services are delayed.
The VTHC says full provisional liability should be introduced to provide weekly
benefits and medical and like expenses within 7 days of a claim being made.
3. Cover All Stress Injuries.The Workcover Authority claims that
psychological/psychiatric injuries are a major problem. It's right;
these injuries inflict massive suffering on the workers who have them.
Mr Hanks wants to solve the problem by taking most stress claims out of
the system as a work-place injury that workers receive compensation for
from Workcover. He says a psychological/psychiatric injury that arises from
any "reasonable management action" shouldn't count as a work-place injury.
From Workcover’s point of view this would solve the problem, but a worker
would be left on the scrap-heap without medical care or financial support.
Every year about 3000 people receive stress injuries at work. The Review
also wants to force these workers to take part in mediation and/or workplace
counselling before liability for their claim is considered. The VTHC says
including "any reasonable management action" as a reason to not accept
claims discriminates against injured workers with psychological/psychiatric
injuries, and will result in the vast majority of stress claims not being accepted.
4. Improve Dispute Resolution Process.If your right to be compensated for a
work-place injury is challenged, your first port of call is the Accident
Compensation Conciliation Service (ACCS). But now, the toothless tiger
may be stripped of its few remaining powers and reduced to a mere talking
shop. Although it's been a toothless tiger for years, it is still a place where
injured workers can make some progress in claiming their rights.
Mr Hanks wants the have the ACCS's powers reduced so that it's a mere
talking shop and have Workcover dictate most of what it does. This would
see at least an extra 6000 claims being forced into the courts for resolution.
The VTHC estimates it will cost workers and employers at least an extra
$60 million a year. This means $30 million each more than the current system.
It would be a lawyers' picnic. It would blow-out the delays in court resolutions
of Workcover claims by at least two years. And extend the suffering and delay
medical treatment for injured workers. It would stop the treatment of injuries
that should be treated and fixed quickly. It would turn basic ordinary injuries
into a battle ground that would prevent workers from pursuing their claims
and create a financial gift to lawyers. For Injuries that could be fixed fast and
the worker back to work quickly, it would extend the process into a complex
legal battle that would mean that the injuries would become long-term and
chronic. This is an ill-considered and, in practice, a mad plan.
The VTHC says workers' claims must be resolved quickly. Unions want a
one-stop shop that has the power to conciliate issues - and - if that fails,
arbitrate. The unions' solution is speedy, simple, fair and economically
efficient. It would deliver the best results for workers and employers.
5. Improve Return to Work Rights for WorkersMr Hanks proposes to remove
from the law most, if not all, of the employer obligations in the return to work
process and move them to guidance material, regulations and codes of
compliance. He also proposes that OH&S reps be the ONLY people -
apart from the injured worker - who can represent an injured worker
in the return to work process. This is a fundamental attack on an injured
worker's right to make their own decision about who represents them at
a critical period in their life. The VTHC says the obligations must remain
in the Act, an injured worker should be able to choose anyone to represent
them and the whole process must be reformed to improve the rights of injured
workers, increase the obligations on employers to return injured workers
to meaningful work.
6. Stop Discrimination.Injured workers are amongst the most discriminated
against groups in the community. But it doesn't just start after they lodge their
Workcover, it can happen if their employer thinks they are going to lodge a
claim. And it isn't just the injured worker who faces discrimination, it can
include anyone who encourages or helps an injured to lodge a claim.
Mr Hanks merely wants to bring the Workcover Act's anti-discrimination
provisions into line with the OHS Act. This doesn't go far enough. The VTHC
says the Act must be changed to prevent all forms of discrimination against
the injured worker or work-mates that may be assisting them in their claim.
7. Bring Outworkers inOutworkers are the most vulnerable workers in Victoria.
Their hours are long and they are regularly the victims of unscrupulous
employers. Mr Hanks says the Act merely needs to be clarified to properly
cover outworkers. But this does not go far enough. Even if it is clarified, the
law won't address the sham working arrangements forced on outworkers
by their employers. The VTHC says existing provisions need not only to
be clarified but also changed to ensure coverage for outworkers. Protection
should not be limited to natural persons and sole employee companies but
should also extend to all sham arrangements.
Now Mr Holding, do my comments only peripherally relate to the objects
of the review?
I have clearly outlined my expectations of this system and its review.
Yours Sincerely,
Workcover Victims
Now after writing the above letter to Mr Holding he hasn't even bothered to
respond too it?
If he is going to continue to ignore his responsibilities then he should be
removed from his office because he is ignoring the very people he was
employed to help!
If you cant take the criticism Mr Holding then resign your position and allow
someone to take over who cares about their job and the injured workers of
Victoria!
Wednesday, 17 September 2008
‘THE REINTRODUCTION OF COMMON LAW
WCV's: This paper describes the workplace insurance system and the governments
legislation changes.
It also clearly explains, how the Kennett government lied about worksafe
statistics and costs to the public to enable the changes to our common
law rights simply, to save money by preventing the employers levy from
increasing which was a pre election promise made by the Bracks
government and nothings been done about it?
So is it, that our government can lie their arses off to change our rights,
and be caught doing it, but not be held responsible for their actions?
This has got to be a criminal offence against the workers of victoria!
When is someone going to look after the workers here?
Now in 2008, we must tolerate the bullshit produced in the Hanks Report
and lose more of our rights without any consultation or opportunity to
vote on it.
Who says Mr hanks is right?
Why isn't Mr Hanks talking to real workplace injury victims?
How would Mr Hanks know what its like to be unemployable?
He bloody wouldn't!
This is another slap in the face for injured workers and their families!
Pay specific attention to the italic parts of the letter!
The Reintroduction of Common Law - The Victorian Experience
Introduction written by Mr Paul Mulvaney, Solicitor, 2001
In order to understand the ‘Victorian Experience’ of the re-introduction of
common law claims for work injuries, it requires a brief historical review of
the development and relationship between common law, and statutory based
no-fault compensation systems generally.
In the second half of the 19th century as injured workers sought damages
through resort to common law actions, they were met by the judicial
development and application of the defences of common employment;
contributory negligence, and voluntary assumption of risk (the ‘Unholy
Trinity’)i. Statute based workers’ compensation schemes were largely an
attempt by government to ameliorate the harsh and repressive features of
the common law.
Despite the eventual introduction of no-fault legislation in all Australian
jurisdictions earlier last century, access to common law remained, so that
workers generally had at least a nominal choice of either statutory or
common law compensation. For much of this period however, the two
systems of compensation were in effect monolithic and independent systems,
with very little interchange between the two. In the main, injured workers
were restricted to a conclusive election between the two systems, and the
interrelationship between the systems was limited to an obligation to refund
compensation payments from any subsequent award of damages.
Over the last two decades there has been a significant development in the
structure of our compensation mechanisms both in the Commonwealth and
various States. There has been a move away from the twin monoliths that is
largely independent structures of Common Law damages and statutory
compensation schemes, to a different model, which I will refer to as a “blended
system”. The hallmarks of a blended system normally involve some mix of
income loss compensation by way of weekly payments (usually partial);
payment for medical and like expenses; statutory payment for levels of
impairment or defined disability; and highly regulated access to the pursuit
of common law damages. These elements are essentially components of a single
scheme where access to the various components is tightly regulated by complex
statutory provisions.
Within blended schemes there have been a number of trends that have been
discernible over recent years. These trends include the ever increasing
restrictions on the pursuit of common law damages and a limitation on the
amount of damages that can be recovered. The restrictions of access to common
law damages utilise a number of mechanisms. These include statutory
designations of ‘certificate’ or ‘serious’ injury, and minimum impairment
payments or minimum requirements for economic loss. In some jurisdictions
the damages obtainable are restricted to non-economic loss, others allow for
a choice between economic or non-economic loss damages.ii similarly in some
jurisdictions the pursuit of common law damages will not finalise an entitlement
to medical expenses. These changes have been accompanied by a restructuring
of maims payments to expand the range of conditions that may be eligible, but
at the same time to shift the focus from generalised disability assessments to
focused impairment assessments generally on the basis of some ‘pseudo scientific’
assessment scheme, driven by the international lust for measurement,
management, and predictability.
The evolution in the nature of compensation schemes is an important factor in
assessing the role of common law in modern compensation schemes. There has
been much philosophical criticism on the role of common law damages in modern
compensation schemes. It is fair to say that this criticism reached its most
significant level during 1960’s and 1970’s. The philosophical criticism was at
times judicial, political, and academic.iii these criticisms were forged as a
response to the inflexible monolithic structures to which I have referred.
As the post World War II boom laid the economic basis for the development
of the modern welfare state however the philosophical and political arguments
against the role of common law in compensating for industrial injury grew.
This was the time of full employment and rising living standards. Inexorably,
the welfare state would ensure that the basic needs of all citizens would be
satisfied. Importantly, if you were injured at work, it was the broader
community who should guarantee your compensation. After all it was they
who benefited from your labour in the increasingly complex and interdependent
society and economy which was emerging. In particular in the 1960’s and 70’s
there was increasing criticism of the role of common law in compensating for
industrial injury.
The traditional philosophical opposition to the role common law believes that
often the compensation payable bears no relation to the degree of fault, or no
relation to the means of the defendant. It is claimed that the fault principle is
not in reality a ‘moral’ principle because a defendant can be negligent without
being morally culpable, and that the fault principle pays insufficient attention
to the conduct or needs of the plaintiff. It is also suggested that once and for
all lump sum awards are crude and inadequate methods of awarding compensation
that the legal process can have a deleterious effect on rehabilitation, and that
transaction costs are too high. Payment of compensation on the basis of fault
was seen as socially regressive. It was seen as compensation for evidence, not
injury.
In 1994 the Industry Commission summarised the rationale of the historical
opposition or ambivalence to common law at that time to include:
· Delays in settlement:- which can have a detrimental effect on the financial
· Delays in settlement:- which can have a detrimental effect on the financial
position of the claimant, may effect incentives for rehabilitation and return to
work, and adds to the complexity of the compensation process
· Incompatibility with rehabilitation and return to work:- where the
· Incompatibility with rehabilitation and return to work:- where the
adversarial nature of the common law process can threaten the employment
relationship, and the consequences particularly for occupational rehabilitation
which normally commences once the injury has stabilised
· Occupational health and safety incentives:- where it is argued that the
· Occupational health and safety incentives:- where it is argued that the
existence of a common law claim may discourage an employer from improving
safety at the workplace (ie the fear of doing so being evidence that the previous
practice was unsafe)
· Common law costs:- including the legal costs of bringing a common law
· Common law costs:- including the legal costs of bringing a common law
claim, and the size of common law awards
· Lumps sums:- damages are awarded as lump sums and are criticised on
· Lumps sums:- damages are awarded as lump sums and are criticised on
the basis of over/under compensation, and the potential for ‘dissipation’ of the
compensation award
· Relationship with medical costs:- it is argued that common law legal
· Relationship with medical costs:- it is argued that common law legal
action can have a significant effect on the size of medical costs ie ‘medico-legals’
· Inconsistency with a no-fault scheme:- a large number of injured workers
· Inconsistency with a no-fault scheme:- a large number of injured workers
are unable to establish fault liability, therefore should a small proportion of
workers obtain additional compensation because they are able to demonstrate
fault (ie the ‘forensic lottery’)
Support for the role of common law in compensation for industrial injury relies
Support for the role of common law in compensation for industrial injury relies
amongst other things, on a notion of deterrence; the ability to individually
tailor compensation dependent on an individual’s needs; the ‘flexibility’ of the
common law and its ability to change with the times and community
expectations; a finality to litigation and the claims process; and community
support for the moral imperative that those (employers) who cause injury
should pay.
Importantly support within the legal community has concentrated on a
‘basic legal rights’ concept without more thorough engagement with many
of the well founded criticisms of common law. The ‘rights’ based arguments
ignored the very real issues of access, and substandard outcomes particularly
for compensation for on-going medical treatment, long term economic loss,
and the dissipation of damages on system created debts.
The 1994 Industry Commission Report summarised the opposing arguments
in support of common law as:
· Workers’ rights:- in that it is a basic legal right
· Justice:- where it is argued that the common law accords with the
· Workers’ rights:- in that it is a basic legal right
· Justice:- where it is argued that the common law accords with the
community’s sense of justice
· Damages:- a common law negligence action protects the severely injured
· Damages:- a common law negligence action protects the severely injured
by ensuring individual assessment of their losses rather than payment by
reference to a statutory formula
· Finality:- where there is both a finality for the injured worker and the
· Finality:- where there is both a finality for the injured worker and the
claim’s agent / insurer
· Benefit levels:-where it is suggested that the availability of common law
· Benefit levels:-where it is suggested that the availability of common law
may act as an incentive to maintain the adequacy of statutory benefits
Interestingly, both sides of the traditional debate contend with some
Interestingly, both sides of the traditional debate contend with some
vehemence the opposite is anti-rehabilitative.
Whilst it is true that much of the relatively recent restriction of common law
in Australia is attributable to conservative governments, it is important to
recognise a strong ambivalence within sections of the ALP, and the trade
union movement to the role of common law. It was the Whitlam government
in 1975, on the basis of the Woodhouse Report, which flirted with the
establishment of a national no-fault compensation scheme with no role
for common law entitlements. In New South Wales in 1987 it was the
Unsworth Labor government which abolished common law entitlements,
and which were eventually reintroduced in a modified form by the Greiner
government in 1990.
Similarly it was a federal Labor government which effectively, though not
formally, removed common law as a part of the Commonwealth Comcare
compensation scheme.
Following the Cooney Committee Report in 1984 (and a review of the
competing claims concerning the role of common law and a statutory scheme)
the Cain government’s introduction of the Accident Compensation Act in
September 1985, and the commencement of the Workcare scheme, saw the
first model of a blended compensation system. Admittedly this was somewhat
serendipitous, relying on a finely balanced political situation at the time, as I
have no doubt that the Cain government subscribed to the traditional
ambivalence to common law outlined above. It should be noted that the model
allowed common law compensation for pain and suffering only (economic loss
addressed in the improvements to weekly payments compensation), and medical
expenses were also separately guaranteed, thereby addressing two of the most
trenchant criticisms of common law. From then it is perhaps fair to say that
those involved in the common law debate in Victoria settled for an uneasy truce
whereby both methods of compensation played a role, in which access to common
law entitlements has generally been restricted or circumscribed, with the
emphasis placed on no-fault statutory benefits.
Why Were Common Law Claims Abolished in Victoria?
The issue of workers’ compensation is one of the most transparent intersections
of the interests of capital and labor in the political process. It therefore often
assumes symbolic importance when there is a change in the fortunes of capital
or labor, and the political parties which claim either as their heartland or
natural constituency, gain office. The reform of the compensation system
presents a new government with an opportunity to demonstrate a tangible
commitment to its power base and historically, new governments have been
quick to usher in change in workers’ compensation laws. Over the last two
decades all Victorian governments have implemented change early in their
first period of office.
From 1992 and leading up to the abolishment of common law in 1997 some of
From 1992 and leading up to the abolishment of common law in 1997 some of
the major Kennett government changes included:
1992 – 1997 Workcover Changes
· A requirement that employment be a significant contributing factor
· The exclusion of some categories of stress claims
· The exclusion of injuries which occur on the way to or from work
· The introduction of the concept of notional earnings which is the amount
1992 – 1997 Workcover Changes
· A requirement that employment be a significant contributing factor
· The exclusion of some categories of stress claims
· The exclusion of injuries which occur on the way to or from work
· The introduction of the concept of notional earnings which is the amount
actually earned or the amount that Workcover believes a worker could be
earning in suitable employment even if no such job exists
· The introduction of the concept of serious injury
· Significant changes to the weekly payments structure
· Termination of payment of routine or non-essential medical expenses
· The introduction of the concept of serious injury
· Significant changes to the weekly payments structure
· Termination of payment of routine or non-essential medical expenses
12 months after weekly payments cease
· Employer control of injured workers access to rehabilitation services
· Removal of ‘mental disorder’ as a basis for lump sum compensation
· Abolishing the specialist Accident Compensation Tribunal (including
· Employer control of injured workers access to rehabilitation services
· Removal of ‘mental disorder’ as a basis for lump sum compensation
· Abolishing the specialist Accident Compensation Tribunal (including
sacking the Judges), and abolishing the Workcare Complaints Commissioner
· Introducing impairment thresholds for hearing loss compensation
· Increasing the role and power of Medical Panels including redefining
· Introducing impairment thresholds for hearing loss compensation
· Increasing the role and power of Medical Panels including redefining
medical questions to include questions of fact and removing judicial review
of decisions
Whilst the government reintroduced rights to claim pecuniary damages in 1992,
Whilst the government reintroduced rights to claim pecuniary damages in 1992,
it introduced the threshold requirement of ‘serious injury’ by way of 30%
whole person impairment based on AMA Guides, or satisfaction of a ‘narrative’
test for access to common law, and placed monetary thresholds on both heads
of damages. A particular aim being to discourage common law claims for small
monetary amounts.
Between 1992 and 1997 the government further tightened access to common
law entitlements by removing secondary psychological injury from the assessment
of impairment, and the imposition of cost penalties including requiring the plaintiff
to pay her/his own costs if damages were assessed but could not be awarded.
The Kennett government also sought to substantially reduce the various
statutory entitlements including weekly payments, and lump sum
compensation for permanent impairment. Accordingly the abolition of common
law rights in 1997 can be seen as a continuation of the Kennett government’s
determination to restrict access to, and the benefits available under, the
Workcover scheme. It should be noted however that following the majority
of changes carried out in 1992 the Workcover scheme had settled into a
relatively stable scheme.
Up until November 1997 there had been a limited assault on common law,
primarily tightening access. The fact that the Kennett government moved
to abolish common law rights after five years in office was curious.
Partly the answer lies in the process of change begun in 1992 and carried out
Partly the answer lies in the process of change begun in 1992 and carried out
up until 1997. But the major reason I suggest, lies in a confluence of factors
merging in late 1997 that provided the political impetus to abolish common law
In my view the Kennett government changes in 1997 were driven by a
In my view the Kennett government changes in 1997 were driven by a
confluence of at least three factors, namely:
· a desire for a significant levy reduction couched in the economic rhetoric
· a desire for a significant levy reduction couched in the economic rhetoric
of employer associations (who portrayed Workcover premiums as an impost
on profitability and jobs), and support for this within government
· the remnants of support for the 1960’s & 1970’s philosophical opposition
· the remnants of support for the 1960’s & 1970’s philosophical opposition
to common law genuinely held by senior policy makers within Treasury and
the VWA and shared by some sections of the labour movement
· and the chronic inability of the Victorian Workcover Authority to in
· and the chronic inability of the Victorian Workcover Authority to in
particular manage the existing common law claim process.
The Economic Rhetoric
Employers groups and associations vigorously pursued the line that workers’
The Economic Rhetoric
Employers groups and associations vigorously pursued the line that workers’
compensation premiums were a crucial component of the economic viability
of the state. I am sure that you have experienced the same arguments here.
Without a shred of objective evidence every percentage point up or down in
premium rates is claimed to represent thousands of jobs lost or gained to other
states. Also, common law was portrayed as anti-rehabilitative, as it, rather
than the fact of negligent caused injury, was seen as the destroyer of the
employment relationship. Clearly the employer groups’ eyes were firmly
fixed on a levy reduction. It is interesting to contrast the position of twenty
five of the twenty six self-insurers in Victoria at this time who opposed the
abolition of common law. They were large corporations employing substantial
numbers of Victorians who were just as interested in the issue of business
costs, but as self-insurers would have no benefit from a levy reduction.
I would suggest that their support for the retention of common law was not
an act of altruism per se, but more a recognition that access to common law
was an important component of the compensation ‘tools’ necessary to
effectively manage their industrial injury portfolios. As well the self-insurers
found no impediment in common law to effective rehabilitation.
The Kennett government threw their support behind the employer association
The Kennett government threw their support behind the employer association
claims with a crude and essentially dishonest use of financial statistics.
In October 1997, shortly before abolishing common law rights for seriously
injured Victorian workers the then Minister for Finance (and responsible
for the Workcover scheme), Roger Hallam, issued a press release which
provided reasons for the abolition of common law that essentially relied on
financial issues, and notions of “more equitable and fairer” treatment for
injured workers. It was claimed that Workcover common law payments
had increased from $17.9 million in 1995/96 to $139.7 million in 1996/97.
Hallam claimed that common law claims constituted 20% of Workcovers
liabilities, yet less than 3% of injured workers received common law
settlements. He also claimed that lawyers were receiving $100 million a year
from Workcover and that this money would be better off going to injured
workers.
Given the continual changes to the compensation scheme since 1985, and in
particular those applying to the operation of common law, it has been almost
impossible to gather sound and objectively based statistical information,
which can be used in any meaningful way to inform policy choice. Not only
are there ‘lies, damn lies, and (Workcover) statistics’, but Hallam’s use of
them in this way represented an attempt by the Kennett government to
portray criticism as merely an esoteric debate between the government
and ‘greedy lawyers’ about money, not principle. The figures utilised by
the government drew on an artificial hump of claims created by its own
amendments in 1992, and then plotted a growth of claims from a zero
base in 1992! What was a natural and expected statistical phenomenon
was portrayed as an alarming and uncontrolled exponential growth in these
claims. Abolition of common law was portrayed as cost neutral and the
proposal as merely removing money from the pockets of lawyers to return
to injured workers.
Kennett & the ‘Historic Ambivalence’
In my view Kennett, as the consummate political animal, sensed some
ambivalence to common law in sections of the trade union movement and the
ALP. His judgment about such ambivalence was not misplaced. I recall a
conversation in mid-1997 with a senior member of the then state ALP
opposition (and now senior cabinet member of the current government).
The Kennett government was in the process of laying the political groundwork
for the abolition of common law in November 1997. Labour lawyers were
encouraging debate about the issue in the broader labour movement. In the
discussion I raised concerns about the impending abolition of common law
only to be told that there “were no votes in Workcover” Thereafter I, amongst
others resolved to ensure that there were votes in Workcover. Of course this
was largely achieved by a well orchestrated campaign conducted by plaintiff law
firms, the trade union movement, legal bodies, injured workers, and other
groups which was comprehended and supported by the wider community.
In 1997 Kennett sought to exploit the ambivalence of some sections of the
labour movement to argue that notion of ‘fault’ based compensation could finally
be put to the sword, and replaced with the protective shield of fair and equitable
statutory lump sum compensation for permanent impairment together with other
entitlements. In this I suggest he was supported by well intentioned senior policy
makers within the bureaucracy who were convinced of the need to remove the
vagaries of common law from the compensation system following the critique
developed during the expansion of the welfare state.
Crises of VWA Management
The above factors merged with the now well documented inability of the
Crises of VWA Management
The above factors merged with the now well documented inability of the
Workcover Authority to manage common law damages claims. These included
an inflexible approach to the management of claims; the exclusion of skilled
insurance staff and their conversion to mere ‘post boxes’ for claims; lack of
integration between common law and the rehabilitation and compensation
process generally; inconsistency of approach to serious injury applications
and common law claims owing to a high level reliance on a relatively large
number of defendant panel law firms; and the ‘infamous’ barristers strike in
late 1997 when the VWA arbitrarily reduced fees.viii In fact I would go as far
as to say that at a senior level VWA management used the other factors to
deflect justified criticism of their incompetence. In so doing the Victorian
Workcover Authority skilfully manipulated a government back-bench committee
which met in secret to consider the issue, and found a willing ally in a particularly
ambitious back-bench member of the government. As often at decisive historical
moments, individuals can play a key role, and the debate in late 1997 about
abolition of common law was no exception. With the Kennett cabinet ambivalence
about the issue, particularly in the face of minor but escalating public opposition,
the then CEO of the VWA returned from overseas to stiffen the ‘resolve’ of his
Minister. The die was cast, and the legislation passed.
Why Was Common Law Reintroduced?
In my view in 1997 the Kennett government committed three fatal misjudgements.
Why Was Common Law Reintroduced?
In my view in 1997 the Kennett government committed three fatal misjudgements.
Firstly, those involved in the political process failed to comprehend the ability of
the existence of common law damages to deflect community focus on the inadequacy
of statutory benefits. The second misjudgement, intimately connected with the
first, involved a gross miscalculation as to the nature and saleability of the
“improved” impairment benefits scheme that accompanied the abolition of
common law damages. Finally, the decision to also totally abolish rights against
a third party was astounding and was readily comprehended as such by the
community.
The impairment benefit scheme enshrined in s98C and s98E of the Accident
Compensation Act relied on the component of impairment benefits on a whole
person basis substantially assessed under the American Medical Association
Guidelines for the Evaluation of Permanent Impairment (4th Edition).
Whilst the government and the Victorian Workcover Authority then contended,
and probably genuinely believed, that the impairment benefits scheme was a
dramatic improvement in the position of injured workers, the reality was different.
The transfer to the AMA 4th Edition Guides and the imposition of a 10% threshold
meant that the new impairment scheme represented a dramatic reduction in
impairment payments alone, not taking account of the loss of general damages
at common law. This flaw was quickly comprehended by some stakeholders,
particularly trade unions and plaintiff lawyers, and quickly became the subject
of "before and after” advertising by the Australian Plaintiff Lawyers Association.
Despite hasty readjustment of the 1997 legislative package both the government,
and extraordinary advertising by the VWA, they were unable to regain the
momentum in the public debate. The momentum was translated into a well-
funded coalition of trade unions, plaintiff lawyers, injured workers and other
community groups that developed a sophisticated campaign strategy focussing
in particular on the ‘human face & story’ of those seriously injured workers
whose benefits and entitlements were being reduced.
An analysis of the VWA’s projections of the cost of the “improved” impairment
benefits under s98C and s98E in the most recent review has demonstrated
the Authority’s costing to be greatly miscalculated. In the Review conducted
by the Workcover Advisory Committee in 1999/2000 material, particularly
comparative studies, undertaken by the medical panel and a study of Slater &
Gordon cases demonstrated that significant lower payment was made under
s98C than its predecessor.ix these studies together with other material
provoked a market revision of actuarial estimates of the projected costs of
s98C claims.x
The abolition of third party rights was absolute and included:
Abolition of rights in cases of medical negligence arising from treatment
The abolition of third party rights was absolute and included:
Abolition of rights in cases of medical negligence arising from treatment
associated with a work injury
No right to pursue damages claims in traffic accidents where the purpose
No right to pursue damages claims in traffic accidents where the purpose
of travel was ‘arising out of or in the course of employment’
Emergency workers such as police were also denied damages claims against
Emergency workers such as police were also denied damages claims against
‘third party’ offenders who caused injury
ABS statistics also revealed that over 66,000 small businesses in Victoria
ABS statistics also revealed that over 66,000 small businesses in Victoria
employing less than five employees operated as companies. These were
primarily small family concerns and the abolition of third party rights meant
that directors could not make a common law because they were deemed workers
under the provisions of the Accident Compensation Act. Notwithstanding the
above the government was of the view that it could ‘tough out’ public opposition
until the next election. This was possibly correct save for the surprise r
esignation of a disgruntled colleague of Kennett which resulted in the Mitcham
by-election in March 1998. It is now a matter of record that along with changes
to the role of the Auditor General, the other major issue fought over during
the by-election was the abolition of common law rights.
The stunning result in the Mitcham by-election in March 1998 was a
demonstration of how successful this campaign was to be. Polling carried
out at the time identified the November 1997 Workcover changes, including
the abolition of common law, to be a decisive issue in the unprecedented
swing against the Kennett government. In fact, a poll carried out by Roy
Morgan Research in late October 1997 revealed that four in five Victorians
surveyed knew of the government proposals, and without requiring any extra
information on the issue, 79% expressed their disapproval!
From 1997 through to the state election in September 1999 the campaign was
extremely well co-ordinated under the umbrella of the ‘Injured Persons
Association’. Marginal seats were targeted where every household received
literature explaining the issues. Advertising was carried out in the print and
electronic media. In particular the campaign used emergency services
workers as a potent example of what was at stake. These workers served
the community, often exposed to great risk, yet potentially not being
adequately compensated for injury as a result of the changes. Well collated
case studies were used to demonstrate the reduction in entitlements and
benefits injured workers would suffer as a result of the changes.
It was in the process of this developing campaign that I believe an important
It was in the process of this developing campaign that I believe an important
and necessary step was taken. That was to examine, and challenge, the
economic assumptions which had been made by employer associations to
justify reductions in premiums. At issue here was a debate concerning who
actually pays for the costs of workers’ compensation. Traditionally it is
asserted that it is the corporate sectors which bears the major costs, and
therefore lower premiums (and by definition lower benefits) are necessary
for reasons of business confidence and competitiveness. By engaging in this
debate we were able to refer to respectable academic evidence to demonstrate
that it is employees who actually fund the compensation scheme insurance
levies via lower real wages. The conventional position maintains that the
increase in workers’ compensation premium constitutes an added cost to the
cost of employment as part of real labour costs that inevitably leads to reduced
employment. These views, generally contended by industry associations, found a
large measure of support within the Department of Treasury and Finance.
The contrary view based on economic research in the United States conducted
by Chelius and Viscusi supports the proposition that “the pursuit of lower
premiums through reduced benefits and restricted eligibility provides little or
no long term benefit to business since the labour market adjusts to yield higher
take home wages at unchanged labour costs to the firm”.xi
Plaintiff lawyers commissioned Marsden Jacob Associates to apply similar
research techniques to the Australian labour market, and examine who pays
for workplace accidents and insurance compensation levies.
In summary their research revealed that:
· over 80% of the cost of workers’ compensation insurance levies are
In summary their research revealed that:
· over 80% of the cost of workers’ compensation insurance levies are
shifted back to workers by the operations of the labour market and the
action of employers, particularly via lower take-home pay, and as a result
employment costs to employers are only temporarily changed by a change
in the insurance levy
· employers actually pay for less than 10% of the total costs to the
· employers actually pay for less than 10% of the total costs to the
Australian economy of workplace accidents and injury
The ‘New’ Common Law
The amendments to the Accident Compensation Act are a marked improvement
The amendments to the Accident Compensation Act are a marked improvement
for injured Victorians. It nonetheless constitutes a remarkably modest reform
by an unduly timid government and reflects the still unresolved philosophical
debates that I have mentioned. There is no doubt that the issue of the removal
of common law damages was a significant issue in the 1999 general election
which continued to resonate in the subsequent Frankston East, Burwood, and
Benalla by-elections. It is regrettable, given the prominence of the issue, that
the Victorian government did not take the opportunity to deliver more meaningful
benefits to its constituency through a marginal extension of the levy from 2.18%
to 2.25% of payroll. This extension would have allowed both a meaningful
substituted common law payment to be made to workers seriously injured
between the 12th November 1997 and the 19th October 1999, and the
government to urgently address the substandard benefits that remain,
particularly in s98C and s98E of the Accident Compensation Act.xii
Legislation reintroduced the ability for a group of specific workers to pursue a
Legislation reintroduced the ability for a group of specific workers to pursue a
claim for common law damages against their employer or third party. The
reform is not fully retrospective and only applies to injuries occurring on or
after the 20th October 1999. The formal justification for failing to date the
reforms back to the 12th November 1997 was the general philosophical
opposition to the use of retrospective legislation. Whilst I understand the
reluctance of governments to utilise retrospective legislation I contend that
there is a qualitative difference between legislation removing rights and
legislation restoring those rights. The Bracks government, in my view, made
the decision not to restore the rights retrospectively firstly, on an economic
basis, ie its commitment to keep the premium level within 2.18% of wages,
and secondly, on the political judgment that the odium that would come from
its failure to restore rights would be borne by the Liberal and National parties.
Whatever the justification, the failure to introduce fully retrospective legislation
Whatever the justification, the failure to introduce fully retrospective legislation
is a tragic abandonment of those workers who are injured within the window
period.
Common Law Threshold
In the final analysis the government elected for a model that utilises the
impairment assessment as the primary gateway to common law but also
allowing access through a narrative test which will vary depending on whether
the worker’s claim is confined to a claim for non pecuniary loss or whether it
seeks to encompass pecuniary loss as well.xiii The impairment assessment test
to be utilised for access to common law damages is to be based on the fourth
edition of the AMA Guides (the ‘Guides’). You will appreciate that between 1992
and 1997 the impairment assessment test was based on the second edition of the
Guides. In reality few persons injured during that period sought access to
common law damages through the impairment assessment method and rather
elected to seek access through the narrative. Under the amendments it is clear
there will be a much greater focus on the impairment assessment for the
purpose of common law damages. It is to be the primary source of an
application for serious injury with resort to the narrative only being possible
after the assessment of permanent impairment.xiv The move from the second
edition to the fourth edition of the Guides is expected to have very marked
effects on the number of persons who will be able to achieve access to common
law through the impairment gateway. In particular there are very marked
differences in the ratings achieved under AMA 4 and AMA 2, particularly in
respect of muscular-skeletal and respiratory injuries.xv
The narrative test to be applied in assessing certification for serious injury for
The narrative test to be applied in assessing certification for serious injury for
injuries occurring on or after the 20th October 1999 has a marked similarity to
the narrative test that was in place for injuries prior to the 12th November
1997. S.134AB(37) of the Bill defines serious injury as follows:
a) permanent serious impairment or loss of a body function; or
b) permanent serious disfigurement; or
c) permanent severe mental or permanent severe behavioural disturbance
a) permanent serious impairment or loss of a body function; or
b) permanent serious disfigurement; or
c) permanent severe mental or permanent severe behavioural disturbance
or disorder; or
d) Loss of a foetus.
Perhaps the most marked changes that have been affected related to an
d) Loss of a foetus.
Perhaps the most marked changes that have been affected related to an
application for serious injury based on a “loss of earning capacity”. It was
generally recognised that in respect of injuries prior to the 12th November
1997 a loss of earning capacity was one of the major factors that influenced
courts in its assessment of whether an injury constituted the serious injury
within the meaning of s135A of the Act. A moderate earning loss when
projected over a workers’ potential working life was generally considered
to be of serious consequence for an injured worker thus justifying the
granting of a serious injury certificate. The new provisions seek to ensure
that an actual loss of a defined extent can only be taken into account in the
establishing of a loss of earning capacity for the purposes of serious injury
certification. Subsection 134AB(38)(e)(i) & (ii) will require a worker to have
a loss of earning capacity of at least 40% as at date of serious injury
certification and that the injury will be productive of a financial loss of 40%
or more permanently into the future.
It must be recognised that if there is a significant trend to pursue claims for
damages in respect of non-pecuniary loss only this will inevitably raise major
prudential issues for the Victorian Workcover Authority. If there is no award
for pecuniary loss then the Workcover Authority does not receive the benefit
of the redemptive effect of a common law damages claim as the worker will
continue to receive entitlement to weekly payment of compensation in accordance
with the Act.
Third Party Claims – The New Common Law Position
The new common law position in respect of third party claims in the legislation
is, I think, indicative of the “hothouse” effect of the preparation of the
legislative amendments. The Kennett government abolition for claims of
common law damages were comprehensive and resulted not only in the
abolition of common law claims in the workplace but also common law claims
in circumstances where a third party was a tort feasor but the injury occurred
in the course of employment not away from the place of employment.
It was not widely comprehended, for example, that the owner and director of a
family company, perhaps working as a plumber, was not entitled to bring a
claim in respect of a transport accident which occurred as a result of driving
in the course of their employment. Similarly a worker injured as a result of
medical malpractice was not able to sue a negligent medical treater if the
treatment related to a workplace injury. The legislation now restores the
right of workers injured in third party circumstances to pursue a claim for
common law damages.
The more curious situation arises in respect of damages claims against third
parties in other circumstances where the injury occurs away from the fixed
place of employment. S134AA(b) of the Bill extends a right to a worker to bring
proceedings for common law damages in specific circumstances without the
need to meet a threshold requirement of serious injury. Those circumstances
are set out in the section but are limited to circumstances where an employer
is not a party to the proceedings and where the injury is by virtue of s83(1) of
the Act deemed to have arisen out of or in the course of employment and if the
workers’ place of employment is a fixed place of employment the injury did not
occur while the worker was present at that fixed place of employment. It is clear
that at the time of the amendment of the Act the government had not fully
considered the potential implications of the serious injury threshold in third
party claims and thus opted to reintroduce the provision that was contained
in the Act between 1985 and 1992.xvi In doing so the government failed to
appreciate that there were no serious injury thresholds in the Act at that time
and all claims for damages were limited to claims for pecuniary loss. We are now
in the peculiar position that those workers injured in deemed employment
circumstances ie., lunch breaks or other breaks away from a place of
employment, medical treatment or attending trade schools are not bound by
the serious injury thresholds, whilst all others injured in the course of
employment but away from their place of employment are so bound.
This situation is best illustrated by example. If say a worker were injured in a
shopping centre during the course of an authorised lunch break they would
have the same rights as any member of the community to bring proceedings against the shopping centre for the negligence resulting in the injury. If the worker
however had been sent to purchase his or her employers lunch and thus was present in the course of their employment, rather than in the course of deemed employment,
they are so bound by the thresholds. No doubt that these anomalies, together
with the anomalies that would centre on whether or not a worker has a fixed
place of employment will necessitate the further amendment of the Act.
Conclusion
What then are the lessons that we can draw from the Victorian experience?
What then are the lessons that we can draw from the Victorian experience?
The first lesson is to recognise the need to develop a new theory of relevance
for common law claims in modern and complex compensations systems.
Initially we must acknowledge that many of the traditional criticisms of the
common law have been valid. We cannot ignore issues such as delay, high
transaction costs, or other defects, as these have the tendency to ultimately
render a system unstainable. It must be recognised that everybody has an
interest in the stability and sustainability of a system. In the past the major
criticism of common law claims for damages was that they were a poor
distributive mechanism. Under modern compensation schemes I contend it is
arguable that they are a sophisticated distributive mechanism.
When a common law claim is a component of a blended compensation scheme
it actually has the potential to be a well focused distributive mechanism that
provides an extra layer of compensation to the most seriously injured in the
most reprehensible circumstances. In so doing it has the potential to meet
community expectations and to promote the deterrent effect inherent in the
remedy. The debate should therefore no longer be focused on a no fault
compensation scheme versus common law, but rather on developing the
appropriate control mechanisms for access to common law. Proper control
mechanisms will be equitable and predictable. The role of common law in
modern blended compensation systems must be accompanied by commitment
to the reduction of transaction costs for the remedy, and flexible recipes for
the claiming of damages. Generally, the right to continue in medical treatment
should be excluded from a claim for damages, and continue irrespective of a
claim. Flexible choices between damages on economic and non-economic
loss will also be an essential ingredient of a relevant common law damages
system.
It will be essential for plaintiff and labour lawyers, and other interested
groups, to develop and promote economic theories that support the role
of common law in order to meet head-on the uncritical rhetoric of employer
groups about the dis-incentives to employment. These new economic theories
will address issues such as those raised by Chelsius and Viscusi and focus on
the irrational subsides provided to injurious employers through depressed
levy payments. These theories must also research and document the deterrent
capacity of the common law remedy in occupational injuries.
The next lesson that has been learnt well in Victoria is the interest of all
stakeholders in a sustainable common law damages scheme. I think there
is a realisation among plaintiff lawyers, trade unions, and others, that a
compensation scheme has to have financial integrity and that adjustments
to the control mechanisms of a scheme will be necessary from time to time.
The reintroduction of common law in Victoria has a degree of fragility and it is
possible that some strain will be imposed on the control mechanisms in future
years. This may be avoided by the imposition of a very strict management
structure derived from the TAC, but time will tell.
The final point I want to make is that we have learned from Victoria that it is
possible to develop a tangible political campaign around the issue of “common law”.
The Victorian experience has shown that it is possible to take this issue and
convert it in to an issue of real importance to the community. To do so however,
requires dedication and co-operation amongst all relevant interest groups. The
lesson we learnt from Victoria was that the most compelling political method
was to focus on the “worthy excluded”.
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