At a recent breakfast seminar, Steve Bell of Herbert Smith Freehills mentioned that a Bill is with the Australian Senate that will open up the Comcare scheme to Australian businesses through the removal of the national competition test. This move has been flagged for some time with several lawyers expressing reservations. Bell mentioned this to the audience of OHS professionals as the law changes could present a substantial change to their operational knowledge base. The Bill is part of a larger debate on OHS.
In a July 2014 article, the Australian Lawyers Alliance (ALA) warned that:
“The proposed changes to Comcare will not only throw state and territory-based workers’ compensation schemes into fiscal chaos, but will also see injured workers left out in the cold,” ALA National President Geraldine Collins said.
“If this legislation is passed, employers may move their workers into the Comcare scheme, thus leaving huge holes of unfunded liability in state schemes which is likely to result in state-based premiums soaring.”
“Opening up the Comcare scheme will be disastrous for workers. Comcare has no meaningful access to common law damages for injuries caused by the negligence of an employer. The scheme is burdensome, paternalistic, and bureaucratic for workers and employers. Its design means premiums have to go up unless benefits are slashed ,” Ms Collins said.
“Comcare also has no meaningful workplace health and safety regime. Work environments will develop where lives are lost and permanently damaged with little oversight and enforcement of workplace health and safety. It is a fundamentally flawed minimalist scheme. Migration en masse will strike at the heart of the financial stability of state schemes, which are mostly running fairly,” Ms Collins said.”
(The ALA’s submission to the Federal Government on this issue is available HERE)
The ALA listed three major changes the Bill may present:
- “Any corporation which employs staff in more than one state will be able to apply for a Comcare licence, meaning that the employer can migrate out of the relevant state or territory workers’ compensation scheme.
- Workers injured while on a recess break outside of their physical place of employment will receive nothing.
- Workers who are injured below a threshold of 10% whole person impairment will be unable to sue their employer for negligence. As a result, workers’ safety will be threatened.”
Several years ago the Federal Government stated its intention to harmonise workers’ compensation after occupational health and safety. The political impediments to the OHS process were identified early and very little action seems to have occurred on workers’ compensation since the initial workshops in March 2010. It could be argued that the expansion of the Comcare scheme is a direct result of the false start on workers’ compensation harmonisation.
The Explanatory Memorandum for the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 discusses the possible impacts on OHS management. If there are no changes, ie. if the status quo remains, multi-state companies are expected have additional costs. Many of these costs seem to be a direct result of the failure of OHS harmonisation.
“Under this option [status quo], work health and safety obligations will not be the same for employees working in the one corporation and employees will need to be aware of their responsibilities and obligations under the laws of each jurisdiction they work in. Hence, this option will not address the issues of inequities in benefits or compliance costs associated with multiple workers’ compensation regimes and jurisdictional obligations for work health and safety. The majority of states and all territories have introduced harmonised WHS legislation; however national employers are still required to deal with the costs and complexity of transacting with up to eight different WHS regulators and regulatory regimes.” (Section 4.1.3, emphasis added)
The highlighted sentence is curious. The Australian government always had the option for a single OHS and workers’ compensation scheme but this would have involved the States relinquishing their role in this area and, potentially changes to the Constitution. The Government, as reflected in the terms of reference of the OHS harmonisation review, had decided that uniform laws, or a single OHS law, were not the way to proceed. Because the harmonised system did nothing to eliminate State jurisdictional obligations the “costs and complexity” were always going to occur.
The Bill does not only address the Comcare option. To truly understand the broad and potential impacts of the Bill (and the ideology behind it), it is worth spending a little bit of time reading some of the political discussion available in Hansard, particularly for Senate Estimates on 3 June 2014 where the following comments were made by Senator Abetz, in discussing injuries resulting from the “serious and wilful misconduct” of employees:
“People actually do and should take responsibility for their actions, and if somebody is shown to be seriously and wilfully engaged in misconduct one wonders why anybody else should be held responsible for it.”
“From a government policy point of view, people do need to take responsibility for their own actions, and wilful and serious misconduct does have consequences that will have flow-on impacts. Let’s make no mistake: every extra claim on a workers compensation policy increases premiums, increases the cost of employing people and, as a result, mitigates against employment opportunities in this country.“
The job creation argument appears again in justification of, apparently, a reduction in the OHS protections for workers. Similar arguments on economic health and business costs have appeared in the current debate over penalty rates.
But what Senator Abetz’s comment reveals is an apparent inability to go beyond the financial in his analysis. He may achieve increased respect if he were to consider the safety of workers overtly in his statements. Imagine how different he would appear, and perhaps government policy would be, if the quote above had addition text:
“Let’s make no mistake: every injury or illness a worker suffers, every extra claim on a workers compensation policy increases premiums, increases the cost of employing people and, as a result, mitigates against employment opportunities in this country.” (added words in Bold)
The debates over the Bill in the Australian Senate should include this question: Will Australian workers be safer and healthier under the amendments proposed? It is a question that we should also be asking of our own local Senators and Members of Parliament.
OHS professionals should also be asking whether they understand the consequences of the Bill. The mention of the Bill at the recent breakfast seminar is a positive step but the professionals, and the profession itself, needs to now educate itself, and quickly, on the potential impacts. If only there was someone lobbying the Australian Government on behalf of worker safety and OHS? Trade unions should not be expected to do everything.