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Tuesday, 27 March 2007
Page: 64


Senator MARK BISHOP (4:48 PM) —When I was required to end my earlier contribution on the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, I was just entering a discussion about some problems that had been identified within the Australian defence forces as to blame shifting, lack of responsibility, and forum shopping by a range of people as to their choice of venue for resolution of workers compensation and associated legal problems. Fortunately, within defence, this practice seems to be changing and that has become apparent as the new occupational health and safety regime becomes operational.

Shifting costs to others is another theme that is a feature of overlapping jurisdictions. The question becomes one of where the costs ought to fall. Too often it is with the taxpayer in publicly funded schemes. The clearest example of this is with insurance companies. They will naturally try to avoid liability through journey-to-work provisions, especially with third-party accident claims. Despite offsetting rules aimed at defeating double compensation, this game continues to be played. Indeed it is endemic to the system, as the system provides an incentive to do so to reduce costs. Passing costs on to others can also be done by pushing injured people into the public health system. In such instances, the taxpayer again foots the bill.

On the employee side it must be conceded that there are attitudinal problems. Workers compensation is an element at the heart of employment conditions, and unfortunately it is sometimes an opportunity for exploitation. Personal gain occasionally emerges. Social security fraud and fraud against insurance companies is a constant and it requires ongoing attention.

There is a final theme emerging with this type of legislation: it is the continuing and eternal battle—between those seeking benefit and those assessing the benefit—over the written law and its particular interpretation from time to time. Any legislation providing benefits, including compensation, faces changing circumstances beyond those current at the time the original legislation was passed.

The trend in the view of most administrators and governments is that tribunals apply the law and, increasingly, interpret the law. Incrementally, the law becomes more generous, often departing substantially from its original intent. That might come down to a definition of words which can be contested before courts. That can be messy and expensive, but it seems to be preferable to running the political gauntlet of amending legislation.

Each of these themes I have just identified pervades this bill in its entirety. Whether the act needs amending legislation at this time really is a moot point, but many of these problems are indeed longstanding. The view of the Law Council was that the problems had to be resolved and had to be resolved now. Perhaps in that context the government has an ulterior motive in reducing the value of employment conditions. Certainly, a number of my Labor colleagues on the Senate committee inquiring into the bill thought so, which is supported by their dissenting report, and it was a prevalent view in a range of submissions from particular trade unions.

Motives aside, perhaps there comes a time when constant recourse and a procession to the courts is pointless. That is where we are today with this bill. In the judgement of the Safety, Rehabilitation and Compensation Commission, which advises the government and the Department of Employment and Workplace Relations, that time has now come.

Let me turn to some of the provisions of the bill. First, may I commend the government on the most minor point—that is, the increase in funeral benefits to $9,000. It seems that this is a matter which has been poorly dealt with in the past. In fact, it makes the provisions of the Veterans’ Entitlement Act look positively stingy, although that act was amended within the last 24 months.

Next I would like to make mention of the definitional changes to the terms ‘disease’ and ‘injury’. The prime motive in tightening up the definitions of ‘injury’ and ‘illness’ are clear from Comcare’s evidence to the Senate committee—that is, the increasing difficulty in dealing with the emerging mental health problems in the workplace. The key one there is stress. We know the increased number of claims and costs in the past decade is due to this phenomenon. At the heart of this difficulty is determining whether the disability is work related or not. As usual, the worst-case scenario was chosen. In this case, bipolar disorder was nominated. While no doubt difficult, it is hardly typical. It is also unclear whether the cost should be borne within the health system, as opposed to being attributed to the workplace. I suggest it could be both, but the system is not so designed. What we end up with is this tug of war as to who is responsible: who is to blame; where does the fault lie? I suggest it might be some time before we know how these amendments take effect. If workers compensation is to carry reduced social responsibility for the care of workers, there are likely to be serious consequences for those workers as a result of the implementation of this bill.

Associated with this proposed change is a redefinition of management-induced stress. This amendment makes it harder for stress claims to be accepted where the cause is alleged to be management action of a disciplinary or counselling nature. I do not really question this scenario; I do, however, question its frequency. There may well be circumstances where this arises and where management action is unacceptable and over the top. Whether this amendment is a sledgehammer to crack a nut, we will have to wait and see. I do, though, share the unions’ concerns that a definition such as ‘reasonable management action’ could be abused if so broadly defined, but I expect the courts and tribunals will tell us if that is the case.

Finally, I refer to the amendments which propose to amend the journey-to-work rule. That has so many variations in Australian practice. In most jurisdictions, there is clarity about what constitutes an acceptable injury claim incurred through a journey to work, but the point is that there are many different jurisdictions. It would be very useful in this modern age to have some degree of consistency. This amendment seems to move the Commonwealth definition closer to common practice in some of the state jurisdictions, but incompatibilities do remain. As a matter of principle, as I have indicated, I would prefer national uniformity. In every case I would prefer a codified, no-fault approach, free of expensive litigation.

That is just another concern I have about the complete lack of vision and policy content in this bill. It simply does not seem to be taking us anywhere, except on a chase for savings, however worthy that might be—and indeed, based on my own experience in this field, that chase for savings may well turn out to be illusory. So I am not too sure whether this set of amendments takes us very far. The opposition’s dissenting report makes that point quite clearly. The same points might be made about absence from work on entitled breaks. We will face a plethora of litigation over the most minute of details, again with a marginal impact on costs. Labor’s dissenting report also notes that these restrictions take the Commonwealth legislation further away from what is now fairly uniform practice across the states, which is further fuel to the suspicion that the legislation is about reducing employee entitlements. It is not about better workers compensation policy.

The legislation also makes provision for a number of amendments. Labor’s dissenting report deals with the objections to those changes so I do not propose to cover them in detail. But the amendments are incomplete, it must be said in passing. In conclusion, this is a disappointing piece of legislation. It is a stopgap measure that fails to advance any long-term policy for workers compensation. The pity is that we will have to wait for another decade of action in the AAT and the courts before we know.