Civil liability and work-related diseases

On 4 October 2009, Queensland’s Attorney-General Cameron Dick released details of his intentions to increase the compensation available for individuals and their relatives through his  Civil Liability and Other Legislation Amendment Bill.  Below is a table which shows the level of the  increase.

It needs to be pointed out that this is not workers’ compensation but OHS legislation is blurring the demarcation between workers compensation and civil liability in the context of safety management.  New Australian legislation is placing OHS obligations on workers and employers for the off-site effects of workplace activities.

The Attorney-General, who is also the Minister for Workplace Relations had this to say about the importance and breadth of the draft Bill:

“This legislation will increase the maximum caps, for the first time in six years, on general damages available under the Civil Liability Act 2003 for personal injuries,” Mr Dick said…. “These amendments will afford injured persons the monetary compensation they need to help them get on with their lives.  The amendments also ensure a de facto partner of an injured person is now able to claim for loss of earnings.”

Dick goes on to discuss the good news concerning dust-related diseases as the amendments will also abolish the statutory limitation period for dust-related disease claims including asbestosis, mesothelioma and silicosis.  It is unclear whether workers’ compensation insurance has similar limitations.

“The removal of the statutory limitation period for dust-relates (sic) diseases will deliver significant benefits to sufferers, by improving their access to justice and reducing the costs and stress associated with pursuing a claim,” Mr Dick said.  “This amendment will have retrospective effect to ensure it captures current cases of dust-related disease originating from exposure during the 1950s, 1960s and 1970s.”

Dick said the amendments also ensure that the caps will be annually indexed to average weekly earnings.

These changes raise the possibility that a workplace may have an event that directly injures workers and also affects people outside the worksite. This could generate two processes for compensation – the workers and members of the public.  The business operator would be involved in both processes, of course.

But Australian OHS legislation is moving towards one OHS “Act” that would involve the management of a hazard and its potential off-site effects.  Why then split the compensation  mechanisms?  Would it not be easier for the business owner to manage the environmental, public and worker impacts of the one event in an integrated fashion?

The model OHS legislation deals with multiple parties affected by work processes surely the government should be looking at a single compensation process that also addresses multiple parties?

The workers’ compensation harmonisation review is still a couple of years away but potential changes should be anticipated.  The table below perhaps should be compared to the Table of Maims used in workers’ compensation in the spirit of harmonisation to determine a broader social justice.

Perhaps in this period of public comment on draft OHS model legislation, the government and stakeholders should anticipate the social consequences of the OHS management obligations it is currently considering.  If environmental legislation and management imposes a “cradle-to-grave” context, why should safety management legislation not?

Kevin Jones

Injury Injury Scale Value Currently worth Maximum from 1 July 2010 will be worth
Serious Facial Injury 14 to 25 $16,600 to $35,000 $19,550 to $41,220
Loss of one eye 26 to 30 $37,000 to $45,000 $43,560 to $53,000
Loss of one testicle 2 to 10 $2000 to $11,000 $2360 to $12,950
Loss of both kidneys 56 to 75 $110,360 to $166,400 $130,000 to $196,000
Loss of one arm from the shoulder 50 to 65 $93,800 to $136,100 $110,500 to $160,300
Loss of one hand 35-60 $56,000 to $121,400 $65,950 to $143,000
Loss of a finger 5 to 20 $5000 to $26,000 $5900 to $30,600
Loss of one leg above the knee 35 to 50 $56,000 to $93,800 $65,950 to $110,500
Loss of one foot 20 to 35 $26,000 to $56,000 $30,600 to $65,950
Total loss of hair on head 11 to 15 $12,400 to $18,000 $14,600 to $21,200

Comcare’s RTW performance has some worrying trends

RTWMatters, an Australian return-to-work website, has analysed some of the data that has been released through the annual data – Aust & NZ RTW Monitor.  The statistics show that the Australian Government’s workers’ compensation insurer, Comcare, has performed well on some performance indicators but others are raising concerns, particularly

  • “The cost of claims has risen from $15 000 in 2005-06 to almost $20 000 in 2008-09. This is substantially higher than the national average.
  • Around 1/3 of Comcare workers can identify a person who made it harder to RTW, which is higher than the national rate. Over the last three years there has been a significant increase in Comcare employees reporting their employer has hindered return to work.
  • Over the last two years, Comcare workers have found it increasingly difficult to find the information they need to make a claim.
  • Comcare workers rated their insurer customer service lower than the national average, with communication, advice about the claim and understanding the situation rated lowest.”

Paul O’Connor, at last week’s Comcare Conference in Canberra was very upbeat but was well aware of the challenges ahead particularly for the next five years during a period when the Australian government will attempt to harmonise the OHS laws in each jurisdiction.  It should be noted that Paul has been Comcare’s CEO since 1 September 2009.  He was formerly with the Transport Accident Commission in Victoria.

O’Connor quoted the Australian Finance Minister, Lindsay Tanner, during his conference presentation.  (The Tanner quotes are from August 2009)

“It is unlikely that we will see any major reform in this area in the near future, as Australia’s various governments are grappling with the challenging task of building uniform national industrial relations and occupational health and safety systems.

“Nevertheless, the current campaign for a national catastrophic injury compensations scheme should trigger a wider debate about injury compensation in our society generally. The present system is fragmented, inequitable, inefficient and arbitrary. Reform could be some time coming but it’s certainly long overdue.”

RTWMatters has identified that more groundwork is going to be needed in the lead-up to the reform process if any measurable improvements are to be achieved.  In their media statement, they say

“Real collaboration requires that all stakeholders be able to access information to assess the impact of legislative and systems changes on workers compensation and return to work outcomes.”

The road to reform that Geoff Fary described as very difficult will be an important one to watch.

Kevin Jones

[Kevin Jones is a feature writer with RTWMatters]

The changing asbestos campaigns

As the incidence of asbestos-related diseases increases, the issues associated with asbestos have evolved beyond occupational health and safety.

The corporate conduct of James Hardie Industries and the prosecuting of its directors by the Australian Government had asbestos as the product around which corporate misbehaviour occurred.   The prosecution has not improved the lot of the victims.  The compensation fund which the director’s lied about will still be inadequate to deal with work-related claims.

Asbestos has become a true public-health hazard and issue, in a similar way that lead went from work to the community or even, perhaps, how cigarette smoke went from the personal to the public.  Increasingly, useful results will be gained from lobbying the government through the public health sphere rather than through OHS.

Today in Tasmania, Matt Peacock‘s book called “Killer Company” was launched with the support of the Australian Workers’ Union.  According to a media release in support of the event, the AWU National Secretary Paul Howes will “call for the creation of a federal National Asbestos Taskforce to manage the prioritised recall of all asbestos containing materials in all forms from the nation.”

Howes says

“The Federal Government must establish a national body with a regulatory mandate to map priority areas for asbestos product removal, such as schools and public places, and oversee its careful and total removal.”

“A National Asbestos Taskforce could facilitate and resource an Asbestos Summit, to bring together industry leaders, regulatory bodies and the nation’s top medical asbestos disease experts. Together with Governments, state, federal and local, such a summit could identify urgent priority areas for asbestos removal and develop a national strategy to deal with this ‘slow burn’ national emergency once and for all.”

Businesses in Australia must have an asbestos register but Paul Howes is also calling for

“…the establishment of a National Asbestos Register for all Australians ill from, or exposed to asbestos. He will also call for the establishment of a Register of all priority areas linked to a national Asbestos Present in Buildings Register.”

“We believe that [an] actuarial study will show that it is cheaper to remove asbestos containing materials completely from Australia, than fund the extraordinary medical cost of treating thousands of Australians contracting very serious asbestos-related disease over some decades to come.”

Unions have a proud history of effecting social change.  Asbestos fits this tradition as it concerns the spread of a manufacturing component that is, arguably, going to have more of a social cost than it ever had as a social benefit.

There is enough of a social awareness of the complexity of issues related to asbestos that traction should be achievable with the government on a public health scheme.  The challenge for the union movement and asbestos-safety advocates is that the campaigns still need to convince the whole community that this cannot be dismissed as a “union issue” but is a public health issue “championed by the unions”.

As more and more cases of asbestosis and mesothelioma start appearing in people who have not been involved in manufacturing or using asbestos, or washing the dust out of clothing, or living near asbestos mines, the seriousness of the health hazard will become evident.  But we should not have to wait till then and a socially-aware government as the Rudd Labor Government in Australia claims to be should be able to acknowledge the sins and mistakes of the past and plan for the future, as it has done on other social concerns.

Kevin Jones

A video and audio interview with Matt Peacock is available online .

UPDATE: 17 September 2009

Tasmania’s Minister for Workplace Relations, Lisa Singh, has released a media statement about her launch of Matt Peacock’s book.  In the statement she outlines her government’s action on asbestos:

“Shortly after becoming the Minister for Workplace Relations, I arranged a forum on Asbestos which was held by Workplace Standards on the 18th of March this year.

“A whole of Government Steering Committee was established following the forum and will make recommendations to me later this year.

The Committee is considering a range of issues including prioritised removal, mandatory reporting and disclosure, disposal, current legal and compensation issues and community awareness and education.

An audio report on the call for asbestos registers by the AWU  was in the ABC Radio program AM on 17 September 2009 and is available online.

Return-To-Work and OHS

Many OHS professionals do not understand the return-to-work (RTW) process.  Many OHS professionals choose to avoid RTW like the swine flu.  In Australia, rehabilitation and compensation come under different legislation to OHS so it is easy to delude one’s self that they are different beasts.

On September 15 2009 at the WorkCover SA Conference, it was possible to argue the same ideological isolation as above but from the RTW stance.  RTW can be as isolationist as OHS.  Admittedly, the conference was about workers’ rehabilitation and injury management but it was surprising how many speakers talked about integrated management without mentioning OHS.

Is this demarcation widening?  Was it formalised by the different Acts of Parliament? By different training backgrounds and criteria?  By the different work-related government departments (they often inhabit the same office, share the same board members, but report to government separately?!)?   Is the demarcation between the human resource specialists and the safety engineers?

In most workplaces such a demarcation would be unmanageable.  Most workplaces, certainly the smaller ones, have the official RTW Coordinator role as part of the duties of an existing staff member, whoever is already juggling the personnel duties and often payroll as well.  It is often a luxury to have a full-time RTW Coordinator.

It is noted that the Australian conferences of the OHS professionals rarely include RTW, and vice versa.  Isn’t is just possible that some bright spark may offer a safety management conference that unites the complementary disciplines, professionals and government departments so that business managers can receive a combination of information that matches the reality?

Kevin Jones

Kevin Jones attended the conference with the support of www.rtwmatters.org an (increasing prominent) online RTW website, and WorkCoverSA.

Injuries cost business 6% of their profit

At The Safety Conference in Sydney in October 2009, Dr Ian Woods, a senior research analyst for AMP Capital Investors, will advise Australian employers that the cost of workplace injuries on their businesses could be around 6% of their profit.

According to a media release in support of the conference

Dr Woods signals three occupational health and safety costs of concern to investors: workers’ compensation premiums, indirect costs, and the costs of alleviating workplace incidents.

“The indirect and unbillable costs associated with workplace injuries are like an iceberg,” he says.  “They represent a huge percentage of the total cost that’s impossible to assess until you run into trouble.”

“The disruption to production caused by workplace injuries cost Australian businesses an estimated $490 million in 2000-01.  The extra administration cost another $360 million.  Incidents can also trigger loss of goodwill, strikes, recruitment issues and dozens of other immeasurable costs.  The United Kingdom’s Health and Safety Executive indicated that the cost of uninsured losses is 10 times the business cost of insurance premiums paid for the same period.

“An injury with $1,000 in direct claims costs will also bring about $5,000 of indirect costs.  Assuming a 5% profit margin, that equates to $100,000 of turnover.  This simple return on investment (ROI) illustrates how valuable preventive measures are to financial bottom lines.

“Still, there is more to investing than just the economic case for improving OH&S performance.  As well as the economic costs, inequality of benefits, costs and suffering are key issues.”

Some of the concepts sound familiar.  Around the turn of the century there was increasing interest in corporate social responsibility and ethical investments and OHS was mentioned regularly as a corporate element that investors would seriously consider.

A good example of the feeling at the time can be seen in a 2002 interview for SafetyAtWork magazine, Paul Gilding of ECOS Corporation* talked about workplace safety.  He was asked about linking workplace safety with sustainable business.

Pages from Safe Companies Ecos Corporation March 2002 coverPG: This is a real fascination for us.  We first came across workplace safety as a major issue for one of our clients, DuPont, where safety culture is so embedded in their business that you can’t walk into their offices without picking it up.  We realised that, as sustainability experts, we had hardly ever come across that issue.  The people who talk about sustainability also talk about corporate social responsibility, human rights in developing countries, climate change, biotechnology, ethics, every issue you could think of but they very rarely, except in a token way, talk about workplace safety.

We first thought why should this be a sustainability issue and then we thought why wouldn’t it be?  We’re talking about the way corporations behave, the effect they have on society, the effect they have on the community they work in, yet we’re not talking about the fact that they are killing and hurting their own people.  This is a surprising omission when it is so fundamental to sustainability.

This perspective has transformed into the widespread advocacy of “safety culture”.

2i14-3 horstAround 2001 Westpac Banking Corporation was developing an OHS index that measured the share performance of the top 100 companies.  Interest in this has faded over the last ten years to such an extent that it is difficult to locate any reference to it.  However, the Westpac index was discussed at many OHS conferences at that time and gained overseas attention as shown in these comments by the former Director of EU-OSHA, Hans-Horst Konkolewsky to Safety At Work magazine in 2001. [Full interview is available]

Q: One of Australia’s major banks, Westpac, is establishing an OHS index that shows relations between this index, the All Ordinaries share index and a company’s share performance. Have you seen this sort of thing in the European region?

HHK: We haven’t seen it explicitly. This bank has taken the lead. I saw on my way to Australia that there seems to be an F4 investment initiative to assess companies’ performance but more broadly with environmental performance, social performance, child labour issues, but also safety and health.

This is one of the many ways we can improve awareness and create a preventive culture starting through the investment area. In Europe, we have had quite a number of different approaches where companies have issued social statements or accounts where they have informed about their employees’ satisfaction with their work, working conditions, customer satisfaction with servicing, their relationship to the society, activities related to employment problems and so on. There are a number of examples that point in the same direction.

I must say that I believe that this can be a rather strong movement if investors and customers, through their demands and market mechanisms, can improve safety and health.

A capital-idea coverA more detailed report that places OHS strongly within the CSR discipline is a 2002 report, now available through an Australian Government website, called “A capital idea -Realising value from environmental and social performance“.

Dr Wood’s presentation will build on these reports and the work of overseas OHS organisations in trying to provide a cost estimate for workplace injuries.  Let’s hope that there are specifics and that there is enough audience enthusiasm to generate a sustainable interest.

Kevin Jones

* cannot verify that this report is still available online

HR management needs to engage with safety management

Businesses, more often than not, place OHS as a subset of the Human Resources Department.  This gives the HR manager considerable organisational clout but often keeps the importance of OHS constrained.

This structure may be functional but also reinforces that the belief that safety can be addressed in HR terms and that is not necessarily the case.

HR Leader cover 001The limitations can be illustrated through the cover story of the latest edition of Human Resources Leader, a weekly publication from LexisNexis.  “People profit…and how to measure it” * is a very good article for the magazine’s intended readership of HR practitioners and recruiters.  It discusses the need for more research into the links between corporate financial performance and employment engagement, “soft measures” and other “metrics” and several other personnel management concepts.  It even provides a “formula for measuring Employee Lifetime Value (ELTV)”.

One serious safety incident could blow all these metrics out of the water.  The risk of injury or illness doesn’t seem to be calculated anywhere in the article.  The costs associated with not managing safety seem to be well-established and tangible through medical costs + repair costs + rehabilitation costs + business disruption + workers compensation.   Dr Ian Woods of AMP Capital Investors estimates injury costs equal an average 6% of profit.

If safety is an element of human resources management, there should be at least some (passing) mention of it, or its costs, in articles that try to measure people management costs.  Omitting this business cost, or wellbeing threat, or continuity threat, or whatever phrase is fashionable at the time, does both safety management and personnel management a great disservice.

Safety is far more than just “health & wellbeing” – a truism that some in the HR sector, particularly the white-collar professions, tend to forget.

Kevin Jones

* a free login is required to access the magazine online

Business drops opposition to Australia’s new OHS laws

A story on the front cover the Australian Financial Review on 8 September 2009 lists the “wins” of the union movement in its negotiations on new national OHS law.  But it is the last couple 0f paragraphs on page 8 that are most surprising.  The article says

“The coalition dropped its previous opposition to the SafeWork Australia bill, allowing it to pass in its original form, limiting the number of unions and employer representatives on the body to two each and giving Ms Gillard [the Workplace Relations Minister] a veto on the appointment of these representatives.”

This seems to be a considerable backtrack on the strong opposition and media statements coming from employer groups over the last 12 months.  One wonders what trade-off the industry associations have managed to obtain.

The changes reported are not very radical for those familiar with the Victorian OHS laws – leave for OHS training and greater protections for union members.  But the union movement has (yet) to get a reverse onus of proof or rights to prosecute.

The media release from the IR Minister crows about the Conservatives’ backdown and says little else other than marking the passing of the legislation.  Ultimately the biggest benefit of this legislation is clarifying the status of Safe Work Australia.

UPDATE: ACCI media statement

The Australian Chamber of Commerce & Industry has released a conciliatory media statement making no reference to its previously strident opposition.  The only semi-interesting content (other than the fact of the statement itself) is its reiteration of OHS being a shared responsibility and the need for Safe Work Australia to ensure its independence.

“The message that working safely requires everyone to take their responsibilities seriously now has a better chance of becoming a co-ordinated national message, with parallels to the mutual responsibility message that features in road safety awareness and safe driving campaigns.”

Kevin Jones

Concatenate Web Development
© Designed and developed by Concatenate Aust Pty Ltd