“The Greens have been saying for a number of years now that the outsourcing of WorkCover’s claims management is a failed experiment, and must be reversed….. Until WorkCover fixes up the poor management of injured workers, it will never get out of its financial mess.” Continue reading “Workers’ Compensation becomes an election issue in South Australia”
In November 2009, the Safety Institute of Australia published its first edition of its peer-reviewed journal. At the time it was described as a good start.
SafetyAtWorkBlog has not reported on the asbestos compensation problems faced by James Hardie Industries directly because in 2009, the issue is one of corporate responsibility more so than workplace safety. The reality is that asbestos kills and victims deserve compensation. The fact that asbestos companies are avoiding their responsibilities is of little surprise.
In Australia, most of the focus has been on James Hardie due, principally, to its corporate conduct to the Australian stock exchange and its prosecution by the financial regulators. But another asbestos miner and building product manufacturer is at the Australian Courts in December 2009.
In some ways, CSR Limited is the more notorious asbestos manufacturer due to its operation of the Wittenoom asbestos mine. It could be said that CSR is the James Hardie of the 1980s.
According to a media report in the Sydney Morning Herald, CSR is planning to demerge but the Federal Court has been told that the Australian Securities & Investments Commission believes that insufficient allowance has been made in the strategy for asbestos compensation.
CSR is splitting its sugar and renewable energies divisions away from the building products division where the compensation is likely to sit. The sugar business will be called Sucrogen.
For those who do watch the corporate manoeuvrings of asbestos manufacturers, CSR’s actions should be familiar but those new to the issue should look beyond James Hardie to gain fuller appreciation of asbestos and capitalism.
For a global perspective on the whole industry it is hard to go past “Defending the Indefensible” by Jock McCulloch and Geoffrey Tweedale.
According to the WorkSafe Victoria website, changes to the Accident Compensation Act were introduced to the Victorian Parliament on 10 December 2009.
WorkSafe is very confident that the changes will be passed. The summary only talks about “when” the bill is passed. There is every likelihood it will be passed but the summary has a tinge of arrogance to it.
A summary of the proposed changes is available online.
It all sounds positive and most of it seems about financial improvements. There are always concerns when a government move from prescriptive- to performance-based practices. The summary describes the Return-To-Work benefit:
“Prescriptive return to work requirements will be reframed as performance based duties to improve flexibility.”
Usually this sort of change is a red flag for rorts and abuse.
The summary does say that enforcement activities will be increased:
“The Return to Work Inspectorate will have a wider range of tools to improve the effectiveness of compliance activities in relation to return to work obligations, maintaining a fair and consistent application of the law.”
However with the government’s recent spate of administrative mistakes, sloppiness and oversights exposed through the Auditor-General’s reports, accountability in this important area will need to be carefully watched.
The Minister for Workcover, Tim Holding‘s speech to the Bill’s second reading concluded (according to the draft Hansard):
“This bill providers (sic) fairer and better benefits to injured workers and their dependents, recognises that getting injured workers back to work is a central pillar of the scheme, and provides greater transparency for employers in their interactions with the scheme. The benefit enhancements in this bill are financially responsible, affordable, and consolidate Victoria’s position as the leader in workers compensation in Australia.”
According to a severalmediareports in the United States, a private investigator, Matthew Brady, who was investigating a workers compensation case whilst hiding in the woods was mistaken for a turkey and shot by the man he was investigating. Brady was operated on in the local hospital.
“Investigator Brady was hit in the side, back and legs. He underwent surgery and presumably filed his own workers comp claim for what is surely a work-related – if highly unusual – disability.”
For decades OHS professionals have known that the Lost Time Injury Frequency Rate (LTIFR) does not accurately measure the safety performance of an organisation. LTIFR can be manipulated and is responsive to single catastrophic events. The consensus has always been that LTIFR is one indicator of safety improvement but should not be relied upon at that same time as acknowledging there is no real alternative to the LTIFR.
From an Australian Senate inquiry that is currently running and sparked, to some extent, from an ABC current affairs report in September 2009, it seems that the Australian postal service, Australia Post, is doing just that.
One of the attractive managerial elements of LTIFR is that it provides a figure from which incentives and rewards can be provided. This is attractive to both OHS managers and employers because LTIFR provides a tangible benchmark.
Safety incentives and rewards have been contentious for decades but have come to the fore in this inquiry due to this type of accusation from one of the Australian trade unions, the CEPU ( Communications, Electrical and Plumbing Union):
Australia Post boasts that Lost Time Injury records are the lowest they’ve ever been. But those results haven’t been achieved by a safer workplace – rather by manipulating the injury management process to force people back to work and deny employees their rights.
Meanwhile, the same managers receive cash bonuses for reducing Lost Time Injuries in their sections.
The CEPU has documented extensive abuse of the injury management process.
Facility Nominated Doctors
Workers are being bullied into attending company-paid Facility Nominated Doctors.
FNDs are instructed to get people eligible for workers compensation straight back to work, before they’ve had to time to recover.
Australia Post has a commercial contract with InjuryNET, a private organisation, which gives Post access to a network of doctors.
InjuryNET guarantees it will reduce Lost Time Injury rates, lost hours and duration until return to pre-injury duties.
Where workers are not eligible for workers compensation, company doctors are instructed to find them unfit for duties, so Australia Post can direct them off work without pay, or sack them.
The CEPU has obtained email evidence that managers use the injury management process to get rid of ‘undesireable’ (sic) employees.
This is the language Australia Post management uses to describe injured workers.
Many of the attachment the CEPU has provided to the Senate Inquiry are not being publicly released because they include details of many cases of alleged mismanagement. The CEPU has posted an example of Australia Post’s approach to injured workers on Youtube.
The Australian Government responded to pressure from unions and elsewhere and established the Senate inquiry with the following terms of reference.
“The practices and procedures of Australia Post over the past three years in relation to the treatment of injured and ill workers, including but not limited to:
allegations that injured staff have been forced back to work in inappropriate duties before they have recovered from workplace injuries:
the desirability of salary bonus policies that reward managers based on lost time injury management and the extent to which this policy may impact on return to work recommendations of managers to achieve bonus targets:
the commercial arrangements that exist between Australia Post and InjuryNet and the quality of the service provided by the organisation:
allegations of Compensation Delegates using fitness for duty assessments from Facility Nominated doctors to justify refusal of compensation claims and whether the practice is in breach of the Privacy Act 1988 and Comcare policies:
allegations that Australia Post has no legal authority to demand medical assessments of injured workers when they are clearly workers’ compensation matters:
the frequency of referrals to InjuryNet Doctors and the policies and circumstances behind the practices:
the comparison of outcomes arising from circumstances when an injured worker attends a facility nominated doctor, their own doctor and when an employee attends both, the practices in place to manage conflicting medical recommendations in the workplace; and
any related matters.”
Some submissions to the inquiry have been made publicly available, including a submission by Australia Post. The company responds to each of the allegations included in the terms of reference. A frequent response from Australia Post is that its actions do not breach the law be it privacy legislation, workers’ compensation or its own policies. This defence is common for companies and organisations but it is often contrary to many of the arguments from the workers.
In the video above Brett Griffin describes the treatment from his managers at Australia Post as “wrong”. It may be wrong but is it illegal? This is the question that most Courts and judges face.
However this inquiry ends, the management of its employees seems not to have been to an acceptable level. The safety and HR Management system seems not to have been working properly. The evidence for this is the number of disgruntled employees and ex-workers and the existence of the Senate inquiry.
Clearly Australia Post’s conduct was not “best practice”. In the company’s recently released annual Corporate Responsibility Report it says this under the section for People Management:
“The effective management of our human resources is, therefore, of vital importance to our brand strength, community engagement, service performance and financial returns. Over several decades, we have developed a set of policies and programs that are designed to protect and reward our people – including progressive industrial relations policies; proactive management of occupational health and safety; continuation of our successful injury management, rehabilitation and return-to-work programs; a strong commitment to diversity; structured workplace learning; and effective grievance procedures.”
RTWMatters said in an article on its website (subscriber access only) in late September 2009 this about Australia Post:
“Some of our team have had first-hand experience with Australia Post’s return to work. In the select number of cases they have dealt with the Australia Post system has been found to be frustrating and seemingly lacking in genuine interest in the employee. Perhaps our team has seen only isolated examples, not representative of the general approach – if so our opinion may be swayed by the appropriate data. Our experience is that the Australia Post system focuses on ‘process before people’.”
The “Senate Inquiry into Australia Post’s treatment of injured and ill workers” will undoubtedly provide important lessons that will be relevant globally on safety incentives, LTIFRs, return-to-work practices in a large organisation, rehabilitation provider conduct, and, most importantly, how to manage injured staff. What should not be lost in any inquiry of this type is that the inquiry exists because people have been hurt and, they feel, unfairly treated.
Regularly in OHS submissions to the government and on OHS discussion forums, safety professionals state that industrial relations should be kept separate from workplace safety issues. In a perfect world ? Possibly, but there was a court decision on 13 November 2009 in Australia that shows that this separation is not possible in the modern world.
Concrete panel supplier, The Precast Company, pleaded guilty in the Dandenong Magistrates Court on Friday 13 November to failing to provide an injured worker with suitable employment as required under Victoria’s workers compensation legislation.
The Court heard that the injured worker was employed as a crane operator when he suffered a crush injury to his finger. He attended Dandenong hospital and 5 days later was certified as being fit for alternative duties.
Two weeks later, he left work early on a Friday to attend his doctor. When he returned to work the following Monday he was informed that he had abandoned his employment and had no right to be there.
At the time, the company defended its action stating the worker had not been dismissed, but instead had walked out of the workplace half way through the day without reason.
As the injured worker had an accepted workers compensation claim, The Precast Company, in dismissing the injured worker, had failed to provide suitable employment despite the worker being certified as fit for alternative duties. Under the State’s workers compensation laws, an employer is required to provide employment to an injured worker who has a capacity for work.
The company pleaded guilty to one charge of failing to provide suitable employment and was fined $2,500 without conviction and agreed to pay costs of $1,500.
The defendant company operates in the building and construction industry. It has declared annual remuneration of about $2 million and has 45 full-time employees. An employee working as a crane operator suffered a crush injury to his finger on 1 April 2008 and was issued with a certificate of capacity certifying him ‘unfit for all duties’ from 2-4 April and fit for alternative duties from 5-16 April. The worker returned to work on 7 April on light duties. He left work early to attend a doctor’s appointment and returned to work on 14 April and continued light duties. He saw his doctor on 17 April and was issued a further alternative duties certificate from 17 April -1 May.
On 18 April the worker left work around midday to attend his doctor’s later that afternoon when he was issued with another certificate. At this stage he had still not submitted a claim form. When he arrived for work on 21 April he was told that he had abandoned his employment and had no right to be there. He went home and soon after sought legal advice. He lodged a claim for compensation that day which CGU accepted.
The defendant company’s director wrote to WorkSafe stating that the worker was not dismissed but had abandoned his employment on 18 April 2008. The director was overseas on that date and his explanation is based on what other staff have told him. The foreman provided a statement to a circumstance investigator that on 18 April the worker “just walked out of the workplace half way through the day. He would not provide a reason. As far as I was concerned he was abandoning his employment at this time.”
On 23 June 2008, the date that the worker’s claim was accepted, he was issued with a certificate of capacity certifying him fit for alternative duties until 21 July. By dismissing the worker the defendant company failed to meet its obligation to provide him with suitable employment once his claim had been accepted.
These are the only public details available at the moment but clearly effective communication was not occurring between the employee and the company. Sometimes circumstances that involve safety become a more complex industrial relations issue which may lead to Court, no matter how hard you try to compartmentalise them.
On 12 February 2010, the Greens parliamentarian, Mark Parnell, accused WorkCover Corporation of failing injured workers in South Australia. In response to the release of the Parliament’s Statutory Authorities Review Committee (SARC) inquiry into WorkCover, he said