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Thursday, 12 November 1964

Senator WILLESEE (Western Australia) , - Mr. Deputy President, the amendments to the Commonwealth Employees' Compensation Act which are now before us were foreshadowed in the Budget Speech of the Treasurer (Mr. Harold Holt). This is a simple Bill. Its purpose is merely to increase the rate of benefits and bring them in line with the benefits which are now paid by the Government of New South Wales. After the Budget proposals were announced on 26th August, I asked the Minister representing the Treasurer a question, but he has not yet got round to answering it. As in the case of Senator Wright's question, my question, because of the effuxion of time, has lost much of its portent, although in my case the position may not be quite as bad. The question I asked on 26th August was -

1.   In preparing legislation to amend the Commonwealth Employees' Compensation Act, which was foreshadowed in the Budget Speech, will the Treasurer consider enlarging the proposed inquiry to cover not only the increases promised but also the unsatisfactory provisions in the Act relating to right of appeal?

2.   Will he also consider the possibility of having the advice of an employees' representative before any decisions are made?

3.   Will he examine the legislation in the various States, and the debates in the Senate on Commonwealth Employees' Compensation, with a view to eliminating obviously unsatisfactory sections in the present Act, so giving a lead to rather than following behind the States in relation to this subject?

As I have said, the Minister has not yet answered the question, and obviously he has not done the things I asked him to do. In another place the Australian Labour Party prepared eleven proposed amendments of this legislation. The amendments were designed to do two things. The first was to inject into the mind of the Government a new concept of workers' compensation - something that the Australian Labour Party has been working on now for several years and which it has tried to explain at every opportunity in the Parliament. The second objective of the amendments was to try to persuade the Government to enlarge and amend the present Act, even within the scope of the concept on which it is now based. So the amendments constitute a two-pronged attack.

I do not intend to move similar amendments in this chamber today because when the honorable member for Hindmarsh (Mr. Clyde Cameron) moved these amendments and discussed them in another place, he was told that the Treasurer (Mr. Harold Holt) was impressed with them and would examine them early in the new year when the Commonwealth Employees' Compensation Act was again under review. This is what the honorable member for Hindmarsh had to say in another place -

I might say that I have had a talk with the Treasurer on this subject and that I understand from him that he is not unfavourably disposed to the suggestion that earnest and serious consideration should be given to the Opposition's proposal. I welcome this attitude.

Every member of the Australian Labour Party welcomes it. As I have said, in view of such an assurance we do not intend to move amendments in this place. However, I desire to take this opportunity to express a few thoughts on the subject in the hope that they will be considered and that the scope of the Act will be widened still further.

Again 1 complain about the timing of the legislation. The last occasion on which I debated a bill to amend this Act was in 1959. On referring to " Hansard " yesterday I found that li pages of print - which does not represent very much talking - covered the period between when I finished dealing with the Bill and when Senator Sir William Spooner, as Leader of the Government, and Senator McKenna, as Leader of the Opposition, began to engage in the usual valedictory, wishing one another a merry Christmas before they went home. In other words, it was only in the very last hour of that sessional period that we had the opportunity to discuss a matter so tremendously important as this is. A few weeks ago when I was dealing with the Commonwealth Employees' Furlough Act I pointed out that bills to amend that Act, the Commonwealth Workers' Compensation Act and other acts of a similar type only came before the Parliament in the final week of a series of sittings. That practice has been as consistent as the sun's rising. I make the suggestion that it is time that Ministers told the deparmental officers who deal with this legislation that if they cannot bring in complicated amending bills on these subjects in time to give members of Parliament adequate opportunity to debate them, the bills should bc held over until the beginning of the next sessional period. I agree that that might not be very desirable in the case of this Bill, which will give benefits to many people, but retrospective operation of the amendments might overcome that difficulty.

Our workers' compensation legislation, which has its counterpart in almost every other country, affects the everyday lives of people in distressed circumstances, people who have been injured and the wives and other dependants of men who have been killed. In 1959 the legislation to amend this Act was the very last piece of legislation to be brought in during the sessional period, ft was the last piece of legislation introduced into the Senate for that session. Here again we have the mad rush. No fewer than 14 or 15 bills have been listed for debate today, after the Senate sat until 3 o'clock this morning. I had to attend a party meeting at half past nine this morning, and now I have to try to deal with this complicated legislation. It is the. umpteenth time I have mentioned this matter of rushing bills through the Parliament at the last moment, and I shall dwell on it a little longer in spite of the smile on the face of the Minister for Civil Aviation (Senator Henty).

Senator Henty - I was wondering what the honorable senator did between 3 o'clock and 6 o'clock this morning.

Senator WILLESEE - I tried to get some sleep. I suppose the Minister would suggest that I should have been studying the Bill. I think this matter is getting beyond a joke. The time has arrived when we should try to improve the procedure.

I want to deal with one or two of the amendments which were suggested in another place, and to underline them to some extent in the light of the review we have been promised. The first matter to which I refer is the complicated question of employees travelling to and from work. The provisions regarding travelling in the Commonwealth Employees Compensation Act were amended in 1945. At that time I was concerned with the administration of the Act. The case law that has arisen from the amendments has greatly improved the position. I noticed in this morning's Press that the New South Wales Parliament is to further amend its Act to make it quite clear that employees are covered by the Act from the time they leave their front door to go to work in the morning until they return to their front door at night.

Senator Wright - Is that what the Act means? It simply refers to the period while the employee is travelling to or from his employment by the Commonwealth.

Senator WILLESEE - As far as I know, from the way in which the Act has been administered, it applies from the time an employee leaves his house in the morning until he returns to his house at night. But there are many complex questions which arise from that interpretation. One question concerns the shortest possible route that an employee should take to get to and from work. Another question is whether, if an employee does some shopping on the way, it is a genuine deviation.

Senator Wright - Suppose that he has been to Melbourne for the weekend and boards a plane at the Melbourne airport on Monday morning to return to his work in Canberra.

Senator WILLESEE - Being a lawyer, the honorable senator should know that that matter would be left for the decision of a judge.

Senator Wright - I was seeking assistance from a superior layman.

Senator WILLESEE - I love these legal hypotheses that the honorable senator puts up to the Senate. Lawyers have to argue these matters before judges. The provisions covering employees travelling to and from work were inserted in the Act in 1945. They have been improved over the years. I think that the interpretation placed on the question of travelling to and from work in Queensland has probably been the best interpretation from the employee's point of view. For the very reason suggested by Senator Wright the New South Wales Parliament has foreshadowed amendments to the Act to try to overcome the difficulty. Another difficulty arises where an employee travels from his place of employment to attend a doctor. Amendments to overcome these difficulties are not breaking new ground. They are merely designed to keep the parties out of the expensive arena of the courts.

An amendment which was suggested in another place related to the question of people helping in emergencies. Criticism is expressed from time to time about people standing back and not helping others who have been involved in accidents, or mishaps, in the water, and not going to the assistance of police when they are under attack. We consider that the Commonwealth should apply the provisions of the Commonwealth Employees Compensation Act in the event of the death of or serious injury to a citizen who helps to save somebody from drowning, who helps a person from a flaming wreck, or who goes to the assistance of police, and that type of thing. I hope that this matter will be considered by the Minister in the future.

I come now to the question of medical benefits provided under the Act. They vary so much in the various States that the Commonwealth should establish a lead in this connection by defining what the medical benefits provisions mean. Some of the benefits are unlimited, but others are not. When we are dealing with the Commonwealth Employees Compensation Act, constutionally we have power to deal only with our own employees, employees in the Territories and seamen on interstate ships. As

Australia develops the Commonwealth Government should set the standard in this regard. It should give its own employees the best possible conditions in these matters. Not only should the Commonwealth Government do that, but it should watch trends all over the world in this field of workers compensation.

I noticed also in the Press report that the amendments foreshadowed by the New South Wales Parliament are almost identical with the amendments which were proposed by the honorable member for Hindmarsh (Mr. Clyde Cameron) in another place last night. They deal with such matters as damage to glasses, dentures and artificial limbs. The position is somewhat ludicrous. If a man with a wooden leg breaks his wooden leg, the worker's compensation provisions do not apply, but if he breaks his good leg and it is amputated, the provisions do apply. If he is out of workwhile his wooden leg is being repaired, the provisions do not apply. We have to do something to improve this position. Many difficulties arise because of doubt as to whether an injury resulted from a worker's employment, and matters of that kind. The Commonwealth Government ought to be setting a lead in this connection for everybody in the community. If an employee of the Commonwealth Government is injured at his work, he should be a charge upon the Commonwealth Government and there should not be difficulty as to what we will admit and what we will not admit.

I come now to the question of facial disfigurement which does not affect a person's earning capacity. Although it does not affect his earning capacity, very severe facial injuries resulting, say, from acid burns received in the course of his work, have a marked effect on his life. These are matters on which new ground ought to be broken. We should be carefully considering what we could do in this regard.

There is another important concept of workers' compensation that will have to be considered. I notice that it was discussed recently in the Western Australian Parliament. A Liberal Party member, who is a doctor, said - and I hope I am quoting him correctly because I have only a Press report - that we ought to be moving towards providing regular pension payments. I think that we are a little outmoded in this matter;

When a person is killed on the job we pay the widow £4,000, wash our hands of the whole affair and feel happy about it. With the raging inflation at the present time and with the different situations in which widows and children might be placed, the widow should become a charge on the community, or, under the Commonwealth Employees Compensation Act, a charge on the Commonwealth Government. We should say to the widow: "Your husband died in the field of industry and you are a charge on the Commonwealth Government until you remarry. Your children will be given all the opportunities."

This is a difficult matter because in the whole field of social services widows are certainly the worst treated. We should not perpetuate this position in the field of worker's compensation. We all know that we are going to die. We know there is the possibility that we will get sick. We know that we will certainly grow old. We can prepare ourselves for that time. But there is no way in which a young married woman can prepare herself for the sudden death of her husband. Even if she anticipated it happening within a year or two of her marriage, in the early days of married life usually it is not possible to make the necessary financial arrangements. The widow is badly treated under our social services set-up, but we should not perpetuate that position in the field of workers' compensation. As honorable senators know, under the Commonwealth Employees' Compensation Act when the Commissioner gives a determination a right of appeal to the Supreme Court lies with an injured person.

Senator Wright - To the County Court, is it not.

Senator WILLESEE - I thought it was to the Supreme Court. In any event, there is a right of appeal to a court. The particular court is not tremendously important to the point I was about to make. Under section 6, the Commissioner may reconsider any such determination and may alter, amend or revoke it. So on the eve of an appeal against a decision, the Commissioner might revoke his determination and bring it out another one. The High Court of Australia referred to this matter in a case that it considered. The judgment stated -

The appeal eventually came on for hearing before the Magistrate's Court on ]6th February 1959. A week before that date, however, a delegate for the Commissioner took a new step. Sub* section 1 of section 6 of the Act provides that the Commissioner shall have power -to examine, hear and determine all matters and questions arising under the Act and the regulations, and subsection 2 provides that the Commissioner may reconsider any such determination and may alter, amend or revoke any such determination. These are powers which may be exercised by delegation under section 7.

A person might prepare an appeal against the first determination.

Senator Wright - What was the effect of the variation of the determination? Was it to increase compensation?

Senator WILLESEE - I do not know, but I imagine that that was the position. I read the case many years ago. I do not think that the Commissioner would reduce compensation or make the position worse. The point is that the High Court held that the delegate was completely within his rights under the Act. There is no legal doubt that the Act can be applied in this way. I suggest that this is something which operates in a very unfair manner. Many of the decisions in respect of Commonwealth servants concern postmen and linemen, because the Postmaster-General's Department is the biggest employer of labour. Injuries to employees in those callings occur far more often than in any other section. They are persons on fairly low salaries. After having engaged counsel to prepare an appeal, an injured lineman may find that the ground of appeal slips from under him and he has to reconsider the whole case. No allowance is made to him for .the costs that he has incurred. To take the case to extreme lengths I point out that this process could go on for ever. I am not suggesting that it would. The Act does not say that the Commissioner may revoke a determination only once or twice. The determination may be revoked and altered" as many times as the official considers necessary. This is an obvious fault. Surely it is not beyond the wit of the Minister and the Department to give a fairer go to the individual in this regard.

Although we have had workers' compensation for a long time, there has been remarkably little change in the pattern. Wc are inclined to be lethargic. We decide to raise the lump sum compensation for death to £4,300 so that it will equal the compensation payable by the New South Wales authorities, and we think that in granting the increase we are doing a pretty fair job. I should like to refer to a passage in a book produced by the University of California. The introduction reads -

The job of treating and compensating occupationally disabled workers goes on every day in each State much as it has since the beginning of workmen's compensation. Through years of criticism, workmen's compensation laws have slowly added and liberalised benefits and incorporated new methods of treatment, but they remain remarkably true to their original form.

That statement applies equally to Australia. In fact, when one looks at the setup in America, where the various States have different compensation laws and meet problems arising from lack of uniformity, one sees that the position is remarkably like our own. It is quite beneficial to study the American setup when considering our own.

We have had workers' compensation in the world since 1885. Strange to say, it originated in the Bismarck era in Germany. After one failure four years earlier, Bismarck finally produced a set of social laws which covered workers' compensation. The position was somewhat parallel with that in England today, where, under the Beveridge plan of 1945, workers' compensation is linked with social services. The movement spread outwards from Germany, mainly because of the work of the group of writers known as the Socialists of the Chair. This socialistic approach was adopted by other countries of continental Europe before it finally spread to England.

Western Australia was the first Australian State to have a workers' compensation act; it was introduced in 1902. Subsequently other States passed acts and the Commonwealth has an Act. I do not know to what degree the Commonwealth has ever tried to give a lead in achieving uniformity. It does seem to be a bit silly that if a person suffers an injury on one side of a State border, he might be in a better position or a worse position than if he had suffered the injury on the other side of the border. We are much better off than the United States of America, in having only six States instead of 50, but there is scope for the Commonwealth to produce a model act as a basis for every State. Every now and again we send representatives to conferences in Geneva, where we agree to all sorts of things. These decisions are not immediately implemented. After many years, the Commonwealth in 1959 accepted the Geneva decision in relation to this matter. It is interesting to note that the United States of America has tried to produce a model act. I was found that some States had particular problems. After litigation and suffering, provisions to cover a situation peculiar to one State were written into the legislation of that State. These problems did not exist in the next State, which had other problems. A hypothetical analogy might be that in Western Australia we would be very concerned with silicosis, because of the gold mining industry. That disease would be pretty well covered in the Western Australian act, but Tasmania would not have the same problem.

Senator Wright - Miners' disease?

Senator WILLESEE - I suggest that it was a hypothetical analogy.

Senator Wright - We have miners' pensions in Tasmania.

Senator WILLESEE - I know. I cited a hypothetical case. I started by saying that the authorities in America tried to pick up these matters and write them into a model act. I said that hypothetically, conditions that applied to Western Australia might not apply so much to Tasmania. We should attempt to produce a model act. In doing so we might write in something that has particular application to Western Australia. Although the provision would be written also into the Queensland and Tasmania Acts, it might lie dormant for a long time, but it would be there if ever the need arose and would save some poor person from being involved in litigation. The United States has been trying to achieve uniformity of this type but, I think, has not met with a great deal of success. In view of the variety of the conditions that apply in Australia, it is time that we started to do something. Although the Commonwealth has no responsibility in this regard, I suggest that as the central Government it should accept responsibility. Let us consider very quickly the compensation that is paid in the case of death. In New South Wales it is £4,300 plus £2 3s. a week for each child under 16 years of age; in Tasmania it is £4,175 plus £103 a year for each child under 16; in Queensland it is £3,300 plus 19s. a week for each child under 16; and in Victoria it is £2,240 plus £80 a year for each child under 16. We have varying lump sum payments and we have payments for children under 16 years of age which range from 19s. a week in Queensland to £2 3s. a week in New South Wales. America faced up to this problem. Australia should do the same.

The Commonwealth is in a unique position in that it is one employer which deals with one set of people, although they are in various industries. We have the advantage that our legislation is much more simple to operate than that in the States, which applies to both government employers and private employers. I hope that amongst other things the Treasurer will consider setting up a workers compensation board. Under the present arrangement, the Commonwealth's delegate has to make a decision on a case presented to him. He is in a field, let me agree immediately, in which there is surprisingly little case law and surprisingly little documentation. It is not the kind of law that seems to be recorded as much as are other kinds. Nevertheless, delegates can make varying decisions on typical and perhaps identical claims, and the only thing a department can do is to refer the delegate's decision back to him with a request that he reconsider it. There could be some variation between awards made to employees in two Commonwealth departments, with the result that possibly a junior or a low-paid officer would have to appeal to a court for what he considered to bc justice.

The Commonwealth is not building up any case law in this field. There are no records to which the officers handling these matters from day to day can turn. A tremendous amount of confusion occurs in departments. It is most confusing to have two different determinations in what appear to be two identical claims. The Workers Compensation Boards seem to work particularly well in the States. The Board in Western Australia seems to be working very smoothly It is building up a great reputation for efficiency, speed of handling cases and a wide outlook-

Senator Wright - What is the constitution of the Western Australian Board?

Senator WILLESEE - A chairman, an employee's delegate and an employer's delegate.

Senator Wright - What is the chairman's previous experience?

Senator WILLESEE - I do not know at the moment, but the two delegates come from industry and they are experienced in these matters. With these Boards, the States are building up tradition and case law. They are beginning to see where they are going. This cannot be said of the Commonwealth. I do not see how this can be said of the Commonwealth until it commences to handle these claims along the lines that I have suggested and disseminates information within the departments so that employees will know what to expect should they become involved in a claim.

In passing, let me refer to partial compensation. An employee may be injured, and the decision may be that he has suffered a loss of 50 per cent, of his working capacity. The Commonwealth then tells him: " You can work only to 50 per cent, capacity, but we cannot employ you."

Senator Morris - Does the honorable Senator mean a recoverable injury?

Senator WILLESEE - I do not know what the honorable senator means by the word " recoverable ". I am putting the case of a man who is told by the Commonwealth that he should be able to earn 50 per cent, of the normal salary for a particular job, but although he may have been employed in, say, the Postmaster-General's Department he is told that a job is no longer available for him. It seems rather strange that the Postmaster-General's Department or other Commonwealth Departments, which cover the whole spectrum of industry, cannot find a job for one of their employees. If the Commonwealth cannot find him a job, what chance has he got outside? In effect he is told: "Your working capacity has been reduced to 50 per cent. We admit that we are responsible for that and will pay you one-half of the salary that you were earning when you were injured, but you have to go outside and try to earn the rest for yourself ".

As I mentioned at the outset, the Opposition supports the proposed increases? We regret that the Bill was introduced at such a late hour that we did not have the opportunity, because of the pressures which are upon us, to debate it fully. This Bill was introduced late last night and we have to discuss it this morning. It passed the House of Representatives yesterday. I hope we are not confronted with a similar situation in the future. As 1 have indicated, we have accepted the Treasurer's promise that the legislation will be reviewed and amended in the New Year. In the circumstances I have nothing further to say except that we welcome the Bill and look forward to another amendment of the Act in the early part of the next sessional period.

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