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Monday, 27 August 2001
Page: 26689


Senator BUCKLAND (5:20 PM) —I rise to speak on the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2000 and the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000 being debated concurrently. The safety, rehabilitation and compensation legislation is applicable to employees under 65 years of age, employees of Commonwealth departments and authorities and of licensed corporations. The Safety, Rehabilitation and Compensation Act 1988 provides a framework for compensation and rehabilitation for injuries and diseases that result in death, incapacity or impairment. The act is administered by Comcare, under the auspices of the Safety, Rehabilitation and Compensation Commission, and it provides for such things as weekly incapacity payments, lump sum compensation for permanent impairment, lump sum compensation for non-economic loss, lump sum compensation and benefits for dependants of deceased employees and provisions for household and attendant care services and rehabilitation for injuries and diseases connected with or arising in the course of work. It is a fairly thorough and comprehensive act.

Experience shows that quite a lot of providers—those people who are there to assist injured workers re-enter the work force—are not even-handed; that is, the care of the worker is often a secondary consideration, the primary consideration being getting that person back to work in some form as quickly as possible. This is not always done thinking of the best interests of the worker. Quite often, rehabilitation means extensive periods away from the workplace, but pressure is placed on providers by agencies who feel, `If we can get the worker back to work for a little while each day, perhaps licking stamps for envelopes or something, then we can say that that worker is not losing time.' I fear that it can happen within Comcare the same as it can within the state workers compensation jurisdictions where there is undue pressure put on the provider to doctor the books. I make no claim against any particular department; it is an observation that I have made over a number of years dealing with workers compensation claims. The government of the day should give great consideration to this to ensure that these providers are providing genuine care rather than just trying to narrowly fulfil the legislation. The benefits I spoke of are based on the degree and duration of incapacity. Compensation for economic and non-economic loss is based on the degree of impairment and extent of loss.

The Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2000 aims to amend the Safety, Rehabilitation and Compensation Act 1988 and the Industrial Chemicals (Notification and Assessment) Act 1989. Labor supports the majority of the amendments, as they do improve some of the benefits. There are also some amendments of a simply technical nature to keep us up to date with the current working environment. However, Labor opposes the provisions relating to the amendments to the definition of injury or disease. We do that because a number of Labor senators in this place have had experience with some of the definitions and the difficulty of actually trying to work through those in representing individual workers. To be compensable under the act, an employee must demonstrate that his or her work contributed `in a material degree' to the contraction of the disease. There is uncertainty over what is added by the phrase `in a material degree'. I myself have tried to work through that and I still have some difficulty with it. I think I know where it is trying to take us, but I am not sure that it is actually doing it in a way that is understandable and practicable in operation.

Another important concern relates to the distinction between `diseases' and `injuries'. The 1971 act defined an injury as any physical or mental injury, including aggravation, acceleration or recurrence, but not a disease. A disease was defined to include any physical or mental ailment, disorder, defect or morbid condition. Courts have held that a natural progression of a disease which causes an injury at work is compensable: for example, a claimant who has a history of heart disease not caused by work and while at work it causes a heart attack would be compensable under the act. The bill includes an amendment to overcome these decisions so that, where an injury occurs at work which is the natural progression of a disease, the injury will be deemed not to be an injury for the purpose of the act. But an employee will not be prevented—and this is one proviso that helps somewhat—from seeking to establish that his or her employment contributed in a material degree to the contraction of the disease itself and that the disease would then be compensable.

But this is a little difficult because, while a worker could have a physical injury such as a broken leg or a back injury and is in the course of rehabilitation—trying to re-enter the work force or retrain for alternative work if they are not able to go back to their former occupation—it is becoming more and more the case that the system that they are working within is creating a mental disability and this secondary mental disability is the one that takes over the actual injury itself. Most workers will have difficulty trying to work through that and argue their case to say, `Well, the mental disability I now have—the depression, the anxiety that I am suffering—is a result of the injury but also the result of the manner in which my employer is putting pressure on me to return to work.' On many occasions, employer pressure on workers or providers aggravates their condition. This overcomes them and it is very difficult to actually argue around that.

I am pleased to say that the very last workers compensation case that I argued before the tribunal—and I hope I never have to argue another one in any form in my life—was a case where we had to prove that, although the anxiety was not caused by the injury, the injury and the manner in which it was dealt with by the provider and the employer caused the worker, from memory after some three years, to suffer this secondary injury, and thus that it was compensable and so could be properly satisfied. So there are real difficulties with the term `in a material degree' that is being proposed. I am not really sure that it will do all that the government is seeking it to do in these bills.

Labor feels that the amending provisions will result in an absolute nightmare for workers who are attempting to prove their claims. No doubt the connection between the injury or disease and what comes later will need to be proved. When you are trying to deal with a multitude of medical experts—doctors, psychologists and psychiatrists on many occasions—it is very difficult to establish whether the claim is compensable. That in itself is a further aggravation for a person returning to full fitness and to their prior employment. Quite often the medical evidence is so conflicting that it really does create an absolute bonanza for lawyers. While looking at this legislation over the last week I sometimes thought it could well have been designed by lawyers who thought that there was money to be made through it. In my view, it is not all the fault of state Liberal governments. Certainly I have been critical of the approach of state Labor government to workers compensation in some of the amendments. You certainly do need a very skilled lawyer to argue your case. I do not think that is really what it should be all about.

The evidence provided to us at the moment does not establish that a serious financial problem for workers compensation schemes will emerge from the current definition of injury and disease. The justification that certain injuries related to employment are excluded from entitlements to workers compensation on the basis that they are caused by normal management actions could be extended to a range of situations. Currently, anecdotal evidence is such that poor management is a major contributing factor towards stress in the workplace. In the case I mentioned earlier there were real problems with management practices. The company has now been taken over, so hopefully that has been sorted out, but that was a contributing factor not only in that case but also in a number of other cases that were before the tribunal. It seems entirely inappropriate to limit an entitlement to compensation which may have resulted from poor management simply because it is a management practice. These provisions attack one of the fundamental underlying assumptions of the Australian workplace, in this case the assumption that if you are injured at work you get compensation—the `no fault' provision under an insurance based scheme.

The bills will provide greater access to compensation for employees who suffer hearing loss, and I think that is extremely important. Presently, an employee is required to have a hearing loss of more than 20 per cent before the loss is compensable. In my own state of South Australia the limit is five per cent, and it varies between six per cent and 10 per cent in the other states. I ask senators to support the amendments to be put forward by Labor, particularly the amendment to reduce the required amount of compensable hearing loss to five per cent. As I have said, that is in line certainly with South Australia and not out of keeping with other jurisdictions. Labor will also be opposing the government's attempt to have a requirement that, after the initial hearing loss, a claimant must suffer a further five per cent hearing loss before they can make another claim. Labor does not consider that just because an initial claim has been made a worker who then suffers a four per cent loss should be precluded from claiming.

In the short time I have left I will turn to the occupational health and safety component of these bills being debated today. As I see it, the bills seek to sideline the important role that unions play in occupational health and safety matters. I do not think there would be many employers out there, particularly small business employers, those in small operations, who would actually disagree with me. This is one area where unions have absolutely shone through their involvement in the workplace. Large and small industries that I have many dealings with—because I like to keep in touch with my past as much as look to the future—see as an absolutely essential component an involvement of their workers with their unions.

Research funded by Worksafe Australia shows that workplaces with effective health and safety committees have fewer workers compensation claims. Whilst the government attempts to justify its reductions in benefits under this scheme, in the OH&S bill the government is about to dismantle positive, safe working outcomes for workers. This will only increase the difficulties that we have with the rehabilitation and compensation bill. So I really do not know what the government is on about here. But if there is one area in which unions need a lot more credit than they are given by the government it is occupational health and safety.

For nearly two decades the Safety, Rehabilitation and Compensation Act provided a compensation and benefit regime. At the time, the incidence of occupational death, injury and disease was considered to be unacceptably high. Time does not allow me to go through a couple of cases where I have had the displeasure of attending sites where, sadly, workers have lost their lives. In my view, the government has not thought this issue through, because the proposed amendments will put the onus on the employer with no right of challenge by the employee as to the safe working conditions in which they and their colleagues must operate. They will not have a say in it. There can be no better way of knowing if a practice is safe or unsafe than finding out from the people who are doing the job day by day. They are able to report back and say, `Something which happened today could have led to a serious injury or death. If we make this small modification, we will have a safer and better place in which to work.' The occupational health and safety legislation was designed to complement the mechanisms of reducing occupational injury and disease that give rise to unacceptable human and economic costs. Simple things, through the involvement of the workers and of the unions through their experience with their members, can contribute substantially to industry—(Time expired)