Tasmania’s workers compensation changes pass

It is easy to forget that workers compensation is clicking along during this intense period of analysis of OHS laws.  Workers compensation legislation passed through Tasmania’s House of Assembly this week (it still needs to get through the Legislative Council).  The Minister for Workplace relations, Lisa Singh, highlighted the following components of the changes in a media release on 6 November 2009.

“The key reforms will:

  • Improve access to common law damages for compensation by reducing the whole of person impairment threshold from 30% to 20%;
  • Amend the first step-down to 90% of normal weekly earnings rather than 85% of normal weekly earnings;
  • Delay the operation of the first step-down, so that it comes into effect at 26 weeks of incapacity rather than 13 weeks;
  • Streamline the management of injury and illness to deliver better health and return to work outcomes for injured workers and lower costs to employers;
  • Foster and reinforce a return to work culture among employers, workers and other stakeholders;
  • Provide greater income security for injured workers by increasing the duration and reducing the “step-down” of weekly compensation payments for injured workers;
  • Increase lump sum compensation up to $250,000 for permanent impairment or death to levels more comparable to those provided in other states and territories;
  • Provide additional financial incentives for workers and employers to participate in rehabilitation.”

The reforms are based on the Government’s response to the recommendations of Victorian consultant Alan Clayton and the Return to Work and Injury Management Model developed by the WorkCover Tasmania Board.

Alan has been a prominent advisor on workers compensation to governments around Australia for some time.  His Tasmanian review and recommendations were in 2007 and are available online.  The Government’s response is also available.

The Minister has said

“With the range of views that were put forward during consultation I am confident that this legislation strikes the right balance of fairness for workers and their families and support for employers and business.”

Simon Cocker, of Unions Tasmania, said in response to the Bill:

“The Workplace Relations Minister is to be congratulated for pursuing these improvements which will ensure that injured workers are better supported when they return to work and are paid more appropriate rates of compensation while off work.”

“The step-down provisions that currently operate have been shown to be unfair and place injured workers and their families under financial stress at a time when they are often struggling to cope with the impact of a serious injury.”

“Delaying the step down and softening its financial impact is an improvement.”

The Australian Government paid considerable attention to the Victorian OHS Act  because it was the most recent review of that legislation.  If the government continues this trend, the Tasmanian changes may be very significant for the rest of the country.

Kevin Jones

UPDATE: 19 November 2009

Tasmanian workers’ compensation laws passed the Legislative Council on 18 November 2009.

Public Comments vs Petition – modern lobbying required

Recently SafetyAtWorkBlog noted that almost one quarter of the submission to the government on its proposed national model OHS law were from individuals and confidential.  There was a suspicion of bulk proforma submissions.

One example that is available through the publicly accessible submissions is a letter to the Minister, Julia Gillard, from the Dr Sharann Johnson, President of the Australian lnstitute of Occupational Hygienists.  The letter raises concerns over the omission of “suitably qualified” from the legislation.  It concludes

“I strongly implore you to reconsider your decision not to include a requirement for the providers of Occupational Health and Safety advice and services to be “suitably qualified” in the national new model OHS legislation.  lt would be disappointing to see this amalgamation of legislation miss the opportunity to make a significant impact on the standard of OHS advice provided to Australian industry and ultimately improve our health and safety performance at a national level.”

Similar concerns to Dr Johnson’s have been discussed elsewhere in  SafetyAtWorkBlog but on the issue of proforma submissions it is noted that three other submissions, Kevin Hedges, Gavin Irving and a personal submission by Dr Johnson, contain almost exactly the same text.

What these and other proforma submitters are producing is not a response to a draft document or a submission but a petition.  Petitions have existed for centuries and carry considerable political clout but putting in a cut-and-paste submission is unhelpful.  It signifies a united position but is not constructive.  A petition to the Government or specific ministers on a single issue, such as “suitably qualified”, may have had more influence if it included an influential number of signatories and was lodged at the appropriate time, in response to outrage over the particular matter.

There is no criticism of the content of the AIOH letters only of the method of delivery and strategy.  There are many more confidential submissions that have also applied a similar strategy.

SafetyAtWorkBlog contacted Safe Work Australia over the issue  and asked “How many proformas were used and who were they by?”  A spokesperson responded

“Of the 480 submissions received, just over 200 standard form submissions were received from union members, in five different proformas.  Each of the five forms contained similar comments.  In addition, we identified a small number of standard form submissions from one professional association.”

In developing better legislation, the influence on the process from “weight of numbers” is likely to be far less in this circumstance than would be gained through constructive and innovative suggestions.

As Australia is likely to go through similar public comment phases on a raft of OHS regulations and documents over the next 12 months, assuming the Government does not shelve the project.  It is important for the proforma submitters to review their strategies and, perhaps, establish more direct contact through lobbying the relevant Ministers in each State and Federally, on behalf of their large (?) membership. In this way the Government would be familiar with the various organisations, would understand the background to those organisations’ arguments, and would then anticipate the innovative solutions that OHS organisations, professionals and experts, would put forward.

This strategy has worked for the unions and business groups for decades.  It may be time for a new strategy for some groups that combines reliable techniques like petitions with personal contact to be followed up by a knock-out submission at the right time, perhaps supported by a broadly distributed media statement.

Kevin Jones

Flawed basis for OHS decision-making

Most strategic plans made by OHS regulators in Australia are based on workers’ compensation statistics.  Everyone agrees that this is a huge underestimation of the work-related injury and illness rates but no one yet has tackled this information deficiency.

Australia’s OHS harmonisation might attempt this but it will not be until the government harmonises the States’ workers’ compensation system that Australians can have unified and consistent statistics.  Yet even then, the reliance on workers’ compensation data will continue to understate the significance of work-related injuries on the community.

The Australian inaction contrasts to activity undertaken in the United States by the Government Audit Office (GAO).  An October 2009 report by the GAO, released online on 16 November and discussed in blogs and one US newspaper, shows the state of OHS statistical play in the US through its audit of the operations of the Department of Labor’s Occupational Safety and Health Administration.

  • OSHA only audits 250 of the 130,000 high hazard worksites each year.
  • All of the data available is provided by employers.  Workers are not interviewed.
  • If the worker has left the company’s employment, they are unable to be interviewed.
  • “OSHA also does not review the accuracy of injury and illness records for worksites in eight high hazard industries because it has not updated the industry codes used to identify these industries since 2002. “
  • Statistics supplied to the Bureau of Labor Statistics by employers are not verified. (BLS is not required to do this)
  • The GAO identified disincentives on both employers and employees for reporting illnesses and injuries – potential job loss, fear of increasing workers’ compensation premiums or losing out on work contracts.
  • The disincentives may lead to a reduced medical treatment so as to avoid injury reporting and the issues associated with the reporting. (A third of health practitioners interviewed admitted to being pressured about workplace injuries)

On this last point, those OHS professionals who advocate safety incentive schemes may wish to consider the graphic below

Pressure From Workers to Downplay Injuries and Illnesses and Awareness of Incentive Programs

Of the 47% who said they were pressured to downplay injuries and illnesses, over 60% were from workplace s that had incentive programs.  This is a serious statistic that incentive advocates must address in their programs.

Australia has tried to gain greater accuracy to OHS data over many years.  The (then) National OHS Commission published several very useful statistical reports into various industries but they could not provide an easily understood national picture because of State variations on reporting criteria.  Australia is much less complex than the US and the task of achieving better OHS statistics should be easier, as long as there is the political will.

The importance of accurate statistics in decision-making at the policy level as well as that at individual workplaces cannot be overstated.  The GAO report summarises the significance in its report.

“Accurate injury and illness records are important because they assist Congress, researchers, OSHA, BLS, and other agencies in describing the nature and extent of occupational safety and health problems.  These records are also vital to helping employers and workers identify and correct safety and health problems in the workplace.  In addition, these records help OSHA evaluate programs, allocate resources, and set and enforce safety and health standards.  Without accurate records, employers engaged in hazardous activities can avoid inspections because OSHA bases many of its safety inspections on work-related injury and illness rates.”

Kevin Jones

My thanks to Workplace Professor Blog for bringing the report to our attention.

The “suitably qualified” challenge on OHS

A quick survey of some of the public submissions on the development of Australia’s model OHS Act illustrates the challenges facing the government after it decided not to include a requirement for only people who are “suitably qualified” in OHS to provide advice to business on workplace safety.

Organisations across the political spectrum have spoken in favour of including “suitably qualified” but “suitably qualified” is in the eye of the beholder.  Several labour and trade union organisations believe that health and safety representatives (HSRs) are “suitably qualified” or “suitable qualified” people should assist HSRs in their work.

The Queensland Council of Unions says

“The WRMC [Workplace Relations Ministers Council] committed itself to a Model Act of the highest possible standards. In order to achieve this, the appointment of suitably qualified persons based on the Queensland model should be reconsidered and the recommendations of the Review implemented.”

Queensland’s OHS legislation had a system of Workplace Health and Safety Officers who were required by every company that had over 30 employees.

The Australian Council of Trade Unions said a PCBU [person conducting a business or undertaking] should

“…employ or engage persons who are suitably qualified in relation to occupational health and safety to provide advice to the PCBU concerning the health and safety of workers of the PCBU.”

The Australasian Meat Industry Employees Union says there should be an “employer obligation to engage a suitably qualified person to assist in H&S”.

Others see “suitably qualified” as a criterion that limits who would qualify for an OHS Entry Permit and what their powers can be.  Wesfarmers Industrial Safety wrote:

“We contend that OHS Permit Holders must be competent to provide OHS advice and must provide a valid reason to justify entry, the only valid entry criteria being to assist the resolution of a reasonably suspected, specified contravention of the Health and Safety Act.   To be effective they must comply with and support site/organisational procedures to enhance site health and safety outcomes and must not intentionally and unreasonably hinder or obstruct any business/undertaking or intentionally intimidate or threaten any business/undertaking or employee.

Suitably qualified in this context must also contemplate that they must not disclose information obtained in accordance with the OHS permit for any purpose other than to assist the resolution of the suspected contravention and must not take copies of documents: if serious concerns exist the Regulator can be requested to attend the site, they will request copies of relevant documents if required.

Additionally, the OHS permit holder and any organisation they represent must be held accountable for the actions taken by the OHS Permit holder.”

There are several challenges for the Australian Government on this issue of “suitably qualified”.  Firstly, it needs to decide whether it can reverse its decision not to include a “suitably qualified” element into the legislation.  To do this it would need to acknowledge that the reasons for exclusion do not match the sensitivities of the community.  This could be embarrassing but also indicate a flexibility and capacity to respond to community concerns.

The government also needs to determine where “suitably qualified” fits.  Should and HSR be suitably qualified or should this only reflect the OHS professionals?  In both cases it puts the governmental up against the commercial training organisations and the university educators (the OHS professional associations have far less clout).

Some academics see the lack of the inclusion of “suitably qualified” as providing a lower level of workplace safety.  Many of these submissions see “suitably qualified” as existing well above the level of HSRs to the professional level.

Professor Mike Capra of the University of Queensland, and other tertiary educators made the following plea:

“We the undersigned Professors of Occupational Health and Safety strongly recommend that the words “suitably qualified”* be inserted as appropriate in the model legislation in relation to the acquisition of advice regarding the health and safety of workers.

Our recommendation is based on the continuing high cost to the community in dollar terms and human suffering in relation to both work place (sic) injury and workplace induced illness which often has long latency and serious medical consequences.

Addressing such serious issues requires properly qualified professionals. The professional practice of OHS management requires skilled professionals with a sound foundation in the physical and health sciences as well as a strong knowledge base in the core OHS areas of health, safety, ergonomics, law, hygiene and toxicology and OHS management systems.

The universities across the country are offering professional entry programs at undergraduate and post graduate levels that are developing the OHS workforce. To sustain this workforce and ensure continued reduction in the societal cost of workplace injury, illness and death there must be recognition of the professional basis of OHS practice and it is imperative that this recognition is reflected in the harmonised legislation.

* Suitably qualified to be determined, as in other professions, by the relevant professional association and industry standards.”

Mike is very committed to improving health and safety of the Australian workforce and it is clear that the moral imperative is king.  But it must also be noted that education thrives on the recognition of qualifications and a legislative requirement for suitably qualified OHS professionals would strengthen the case for the viability of tertiary OHS courses which, according to some sources, are in a perilous state.

One submission questioned the sense or practicality of having an HSR trained in safety beyond the skills of the PCBU.  Shaw Idea wrote

“….the Model Act should require PCBUs to obtain advice from suitably qualified advisers. It is inconsistent to require HSRs to be trained, but not require PCBUs to either be trained or be advised by those with competence in relevant areas. The OHS consequences of incompetent or ill-informed actions by employers are far greater than the consequences of HSR actions.”

The OHS training industry has done themselves a disservice for decades by not having a formal OHS management course for safety or business managers.  There is a big difference between training an HSR to manage upward to the employer and training a manager to manage the safety of a workforce.  Leaving executive training to the tertiary sector has exposed a large vocational hole in business management of workplace safety.

It must also be stated that the editor of SafetyAtWorkBlog also made a submission to the Australian Government in which “suitably qualified” was discussed.  Below is the relevant section:

“Many safety professionals are concerned that “suitably qualified” has been omitted for the proposed legislation.  I think the reason given for its omission is poor but I do not support those who advocate the inclusion of the concept.  The push has been particularly strong from Victoria and through a couple of OHS professional associations.  No evidence has been made publicly available for the need for such a concept.  It is something Victoria has had and it is loathe (sic) to relinquish. Good OHS advice is available from good OHS advisers and caveat emptor should apply on OHS advice as with any other.

The “suitably qualified” advocates like to compare themselves to other professions like medicine yet it is recommended even from within the medical profession that second opinions be sought.  The safety profession does not advocate this very sensible suggestion.”

Kevin Jones

PCBUs have begun appearing

A reader has drawn SafetyAtWorkBlog’s attention to one State regulator in Australia who has already begun to apply the broader definition for “employer” in their OHS guidance material.

In September 2009, the ACT Safety Commissioner published a Guidance on “Safe Structures, Systems and Workplaces“.  In that guidance, the Commissioner refers to

…”New general duties to ensure work safety by managing risk apply to a person:

…carrying on a business or undertaking;…”

This anticipates the definition put forward in Australia’s OHS model Act in relation to PCBUs (Peek-A-Boos).

The matter of a “business or undertaker” was also used in the ACT’s Work Safety Act 2008 (effective from 1 October 2009) throughout the document but with slight variation.  Of most interest here are the definitions of employer, worker and “business or undertaking”:

“employer, of a worker, includes a person who engages the worker to carry out work in the person’s business or undertaking.”

“worker means an individual who carries out work in relation to a business or undertaking, whether for reward or otherwise, under an arrangement with the person conducting the business or undertaking.”

“business or undertaking includes—

(a) a not-for-profit business; and

(b) an activity conducted by a local, state or territory government.”

The logic of such an inclusive term is understandable but needs greater clarity which is likely to some from regulations or supportive documents.

Having a Peek-A-Boo is one thing, let’s just hope that the jargon does not develop to start referring to “undertakers”.

Kevin Jones

Justice in workers’ compensation reforms

A South Australian colleague has pointed out some interesting elements in WorkCover SA’s review of employer incentives discussed earlier.

The following text are some of the aims of South Australia’s Workers Compensation and Rehabilitation Act.

(1) The objects of this Act are—

(a) to establish a workers rehabilitation and compensation scheme—

(i) that achieves a reasonable balance between the interests of employers and the interests of workers

(iv) that reduces the overall social and economic cost to the community of employment-related disabilities

(2) A person exercising judicial, quasi-judicial or administrative powers must interpret this Act in the light of its objects without bias towards the interests of employers on the one hand, or workers on the other.

My colleague points out that a review of employer incentives is well and good but what are the incentives for employees, given the objects of the Act concerning balance and bias?

She also criticises

“…the current incentive for employers of paying the first two weeks of the injured workers income payments if the employer supplies the claim agent with the employer section of the injury/incident report goes against the intent as outlined in Objects of the Act, as there is not any corresponding incentive offered to the injured worker.”

Whether the injury report is valid or useful is irrelevant to the incentive as it is the lodgment of the form that generates the incentive rather than any rehabilitation action for the injured worker.

There is no doubt that the workers compensation scheme needed a review.  The recent Return-To-Work (RTW) conference in Adelaide had an atmosphere of hope after the introduction of the RTW coordinator requirements for businesses.

South Australia is different from most other Australian States where a single company handles workers compensation insurance, Employers Mutual.  Not only is there a huge lack of competition in South Australia but the government and the insurer are close.

There is also a political element with Paul Caica being given the portfolio in order to fix it.  In June 2009, the Minister announced a range of projects from a fair pool of funds but many of them are focused on the workers rather than providing structural change to the system.  It is hard not to speculate how workers may benefit if the insurance industry in the State had competition.

The need for reform was clear as the South Australian workers’ compensation scheme was bleeding money but it must have been politically attractive to try to postpone an analysis of the system until the Federal Government started its national review of workers’ compensation system in a few years’ time.  It may have been that such a strategy was planned until the global financial crisis changed the public’s tolerance for government debt forcing the SA government had to act.

Kevin Jones

Coincidence or unique perspective?

Since the end of the end of the public comment phase on Australia’s national model OHS laws, Safe Work Australia has been daily uploading submissions to their website.  Within the last lot of uploads was a block of around 100 submissions, all of which are marked confidential and have, apparently, been submitted by individuals.

One confidential submitter shares his name with a person who has been associated with some peculiar industrial relations behaviour.  In August 2009, during a heated industrial dispute concerning work on the West Gate Bridge, a trade unionist pleaded guilty to dangerous driving and to carrying a piece of pipe without lawful excuse, according to one media report.

A person with the same name is also listed in an order issued by the Federal Court of Australia in March 2009 that places restrictions on several people in relation to the West Gate Bridge project and the premises of contractor John Holland.

It is not possible to determine if this is a coincidence because the submission is confidential and submissions do not include contact details.  But if it is the same person, it is a shame that the OHS submission is not publicly available because a person who may have been involved in an intense industrial dispute and who may have been legally restrained would surely provide an interesting perspective on the relationship between OHS and industrial relations.

It is relatively easy to determine the politics of organisations that make submissions but when lodged by individuals political perspectives or professional connections cannot be determined, even when the submission is not confidential.  That such a large number of confidential submissions have been lodged is curious but due to due process, it is likely to remain so.

Kevin Jones

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