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Tuesday, 10 April 1973
Page: 1262


Mr INNES (Melbourne) - I would like to say at the outset that I am very pleased that the professional obstructionists on the other side of the House have seen fit at least tacitly to support the Bill. One would have doubts from what has been said by the honourable member for Indi (Mr Holten), who is a member of the Australian Country Party, because whilst in fact members of the Country Party are paying lip service to the measure they are putting arguments against it. Their remarks will be judged by the people who do not believe that it is a pleasure to receive compensation. They receive compensation because they have been injured or find themselves in a desperate situation.

It is certainly with some pleasure that I support the Bill. In doing so I applaud the action of the Minister for Labour (Mr Clyde Cameron) in introducing this legislation. It must be for him, as for me, a proud and satisfying moment when such legislation is introduced into the Parliament. There are in my view 3 great steps taken by this Bill. The first of these is the new definition of disease, the second is the quantum of damages now provided in cases of accident or injury, and the third is the proposal, long overdue, for the introduction of a safety code. The Bill must be seen as another step forward in the implementation of the Australian Labor Party's comprehensive social security program based on the philosophy that society has an obligation to provide adequately for citizens who for any reason cannot take care of themselves or those dependent on them. It is also necessary that any social security payments should be tied to average weekly earnings, including increments, to ensure that the persons receiving benefits will receive automatic increases as productivity increases, as other factors increase general prosperity, or as inflation occurs.

The purpose of the Bill, as I have indicated, is to make a number of important amendments to the Compensation (Commonwealth Employees) Act 1971-1972. These involve a change in the conditions relating to eligibility for compensation in disease cases and some significant changes in the rates and amounts payable under the Act. Amendments are made to the definitions of injury and disease, and section 29 of the Act is repealed, thus allowing a disease or the aggravation, acceleration or recurrence of a disease to be treated on the same basis as an injury. Eligibility will be established if the disease or aggravation, etc., arises out of or in the course of employment and, as with an injury, a temporal connection with the employment will be sufficient.

In my experience the use of legal definition of accident, injury or disease has been such that the workers have not received their proper rights. I instance the action of the Victorian Government in 1964 when on the one hand it increased the quantum of damages and on the other severely restricted the areas in which those damages could be granted, the net result being that employers who are represented by our friends in the Opposition, paid less in compensation payments than before. This was a step heralded by the Bolte Government as an advance in social legislation. An example of the effect of the amendments can be shown by reference to the Ockenden case, in which the High Court of Australia said:

A worker does not suffer personal injury by accident arising in the course of his employment where he suffers at his place of employment a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment.

I am pleased that this legislation will remove that terrible impost on a worker trying to establish his rights to workers compensation. I shall outline the main changes in the rates and amounts of compensation payable under the Act. Compensation for total incapacity will be increased to the level of the employee's average weekly earnings, including increments, and will continue at this level during the entire period of his incapacity. Compensation for partial incapacity will be a weekly amount equal to the difference between the employee's average weekly earnings in his pre-injury employment and the weekly amount he is earning after the injury, without any limit on the amount so payable. The Commonwealth will be obliged to provide suitable employment to a partially incapacitated employee or continue weekly payments on the basis of total incapacity; but the payments may be suspended if the employee unreasonably refuses or fails to accept or satisfactorily undertake suitable employment when it is provided. The lump sum compensation for death is replaced by weekly payments ranging up to the full average weekly earnings of the deceased employee.

The lump sums payable for specified losses are to be related to the national average weekly earnings, and thus will be varied automatically on a quarterly basis. On current figures this will give a maximum of $26,026 compared with $14,500 provided in the Act. The percentages relating to the various losses have been increased and additional losses have been provided for, namely, loss of binocular vision, loss of the procreative function, bodily disfigurement and the loss of part of the body or of a faculty not elsewhere provided for in the section relating to certain losses. Also these lump sum payments will no longer terminate entitlement to continuance of weekly incapacity payments. An employee who is also receiving a superannuation or Defence Forces Retirement Benefits pension will be given the right to request a lump sum payment in redemption of the liability for weekly payments even though he is totally incapacitated.

An employee whose total incapacity for work would be permanent but for vocational training will not have his weekly compensation reduced because of any earnings he receives during or as a result of the training. The law in Australia - this is terribly important - has, for at least 50 years, provided 2 ways of compensating a worker who is injured as a result of circumstances connected with his employment. At common law the injured worker has a right to sue for damages if his injury can be found to have occurred as a result of the fault - I ask honourable members to note that word - of his employer or fellow employee. Where no fault exists, workers have been able to receive limited benefits by making claims under workers compensation statutes. There has always been a basic difference in philosophy between the benefits obtainable under workers compensation Acts and those obtainable as a result of actions for damages. In actions for damages where fault has been established the law has attempted to put the injured worker in the same monetary situation as he would have been in had his injury not occurred by providing compensation for out of pocket expenses, past and future pain, suffering, loss of enjoyment of life and future economic loss, including potential loss of income resulting from the loss of opportunity for advancement in employment.

On the other hand, workers compensation Act benefits have merely attempted to give the injured worker something towards the solution of his financial problems. They have never attempted to provide a complete economic solution. The degree of assistance has tended to vary between Commonwealth Acts and State Acts, but more often than not the benefits have been only a marginal improvement on benefits obtainable under social service legislation. The increased benefits provided in the Bill will ensure' that the Compensation (Commonwealth Employees) Act is the most generous workers compensation legislation in both scope and benefit ever enacted in Australia. The provisions in the Bill, which compensate for incapacity or disability due to a disease temporarily connected with the employment, provide average weekly income during incapacity, greatly increase lump sum benefits for disability and continue weekly payments in addition to lump sum benefits, will bring the Act closer to: the benefits philosophy of common law actions for damages than any other workers compensation legislation has ever approached.

I believe that the basic principle of all compensation legislation benefits should be to totally compensate not merely to partially compensate.

Compensation legislation should ensure that the injured employee is placed in the same economic situation as he would have been in had the injury not occurred. This is not a new proposition. It is a situation which has always been recognised by the common law in Australia where fault has been the cause of the injury. But the overriding concern of governments should be the interest and welfare of the disabled worker or employee, not the establishment of fault in the causation of the injury which has caused disability. This situation is now increasingly recognised by enlightened governments in the Western world and is evidenced by workers compensation legislation and more recently by no fault compensation schemes, an example of which is the scheme recently introduced by the Government in legislation in New Zealand.

These Acts and schemes are imperfect examples of the desire of governments to totally compensate injured persons whether they be injured in connection with their work or otherwise and whether or not their injuries occurred as a result of fault. The Commonwealth Employees Compensation Act when amended will still fall short of the benefits that are obtainable in actions for damages. It will still fall short of providing a total solution to the financial problems of injured workers. For example, the lump sum payments will still fall below the amounts obtainable in actions for damages before juries. In the case of total or partial incapacity no allowance is made in this Bill or in the existing Act for the fact that the injured employee has more often than not been deprived of promotional opportunity and economic advancement. The weekly payments on death provided in the Bill are not as valuable as the lump sum obtainable in actions for damages by widows, particularly since these payments terminate upon the widow's remarrying.

I now turn to the Minister's welcome announcement of proposals for a safety code, a proposal that has been for a long time a plank of the federal platform of the Labor Party. It is the prevention of accidents and disease that is the most important factor to workers. Such action is very long overdue. Previous governments have only provided lip service to International Labour Organisation conventions on the very important matter of safety. I would like to point out to the Minister that a number of ILO Conventions dealing specially with safety codes have not at this point in time been ratified by Australia. This is a dishonest approach. We cannot sit at meetings in which these conventions are made and then come back to this country and simply do nothing at all about them. Some of these conventions include: Convention No. 32 Protection Against Accidents (Dockers) (Revised) 1932; Convention No. 62 Safety Provisions (Building) 1937 and, in particular, Convention No. 119 Guarding of Machinery, 1963. In my view it is not good enough to say that under Commonwealth jurisdiction the Government considers that there are no manufacturers of machinery in the Australian Capital Territory or the Northern Territory and that there are major difficulties in ratification in the States. One of the promises of this Government has been that in its Territories it will set up model legislation as an example to the States. Even if there are constitutional difficulties in persuading the States to ratify this Convention, 1 would hope that in the near future the Commonwealth Territories will have legislation which does conform to the Convention and the Minister and the Government should take steps to see that ils contracts are directed towards the companies which abide by the provisions of the Conventions. I also suggest that the relevant ILO Convention dealing with safety be referred to the representative committee envisaged by the Minister in his second reading speech. This committee would play a major part in not allowing this decision to establish a safety code to become empty pious words. It must become a reality in the interests of people who suffer as a result of accidents and who look to this legislation as a means of obtaining justice in this area.

Briefly I refer now to the Seamen's Compensation Act 1911-1972. I am sure that this is a mere oversight by the Minister but I draw his attention to the quantum of damages provided in the Act. As the Minister will be aware, the Act provides for the payment of an amount of $14,500 in respect of the various more serious injuries. This amount and the percentage of that amount which is paid for the other injuries are set out in the Third Schedule to the Seamen's Compensation Act. The percentages therein in some cases fall well below those in the table on page 8 of the Bill we are now considering.

There are other defects in the seamen's legislation. For instance, there is no provision as to compensation for loss of the procreative function - this is very important to the seamen - or for the suffering of facial injuries or the loss of binocular vision. I realise that the Minister has a great number of issues before him but I take this opportunity to urge him at the earliest possible moment to bring the legislation relating to seamen into line with this Bill now before us. I also look forward to the day when the Minister can announce that ILO Convention No. 55 of 1936 which deals with the shipowner's liability in respect of sick and injured seamen has been ratified by Australia. However, I have indicated that I believe firmly that the amendments proposed by this Bill must be supported for the reasons I have already stated. As I have said, this is undoubtedly the most beneficial piece of workers compensation legislation ever passed in Australia. It will substantially improve the situation of disabled or incapacitated Commonwealth employees entitled to receive its benefits. In supporting the Bill, however, I ask all honourable members to recognise that the increased benefits provided by the Bill are still only a further step towards the ultimate goal of compensation legislation designed to compensate injured employees fully. The hypocrisy of the honourable member for Indi (Mr Holten) who asked where the money is coming from-

Mr DEPUTY SPEAKER (Mr Drury)Order!I must point out to the honourable member and the word 'hypocrisy' is unparliamentary and I ask him to withdraw it.


Mr INNES - I will withdraw it and leave it to other people to judge for themselves. The way in which the honourable member presented his case and the futility of his argument rest on that basis. He asked where the money is coming from to provide such benefits to Commonwealth employees. There was no trouble in financing the war in Vietnam where we sent our young people to fight and die in the jungles of that country. So I do not see any difficulty in finding the necessary funds to finance this piece of legislation. Regardless of fault, the people who rely on this legislation will receive benefits which will place them in the same position financially and economically as they would have been in had their injuries not occurred. I commend the Bill to the House.







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