Return to Work Bill

The Hon. T.A. FRANKS ( 15:47 ): I rise on behalf of the Greens today to raise our concerns in my contribution to the debate on this Return to Work Bill. I thank the ministerial advisers Jim Watson, Emma Siami, Trudy Minett and Stephen Pinches for providing a briefing to myself and my staff. I note, as many have in their contributions, that the Deputy Premier and Minister for Industrial Relations has stated in an InDaily interview on 2 April 2014 that, indeed, the South Australian WorkCover scheme is a failure. I think his words were, of course, it was ‘buggered’. 

The Greens agree; however, we do not agree with the government’s solution. The problem for the minister is that, in fact, this current scheme is not even Tory legislation of which the minister can absolve himself. Of course, this current scheme, which is self-described as ‘buggered’, is indeed a concoction of the Rann/Weatherill Labor government. 

The scheme that introduced the changes in 2008 made the current South Australian WorkCover legislation one of the most draconian antiworker compensation legislation bills ever passed in any jurisdiction in our nation. In fact, this bill itself has been described as ‘draconian’ by a Labor backbencher in the other place. That backbencher declined to vote against the bill, but certainly at least spoke some truths in her second reading speech to this bill. 

We know that the WorkCover claims management system has treated workers as claims rather than people, and this government has stood by and watched that happen; they have done very little. The Greens ask why it has taken so long to act, and undoing the damage that this cultural melee has caused will take more than just a change to the legislation. It will take an overhaul of the system and its stakeholders to create positive change and positive results for injured workers in this state. 

I know the minister spent much of his time negotiating with the employers, the unions and various other stakeholders, and indeed much of that negotiation has taken place in these past weeks, as we have seen pages after pages after pages of amendments by the government to their own bill. I believe we are all looking to establish a better WorkCover system for our state, and I do appreciate the minister’s keen interest and background in this field; however, we as the Greens still have grave concerns for some of the provisions in this bill. 

Those concerns are indeed echoed by some sectors of the union movement, by some who represent injured workers, and by quite learned and relevant bodies as the Law Society of South Australia. Some of the provisions in the bill that have been criticised not only by the Law Society but by those groups will indeed not make a return-to-work bill, but a harder-to-return-to-work bill; in fact, we think that the ‘Harder to Return to Work Act’ is probably a better name for the act. 

The tightening of the eligibility criteria for compensation is certainly something the Greens are concerned about. The government has proposed that an injured worker, when claiming for psychological injury, will have to prove that their employment was the significant contributing cause of that injury. Under the current act, an injured worker has to prove that the injury arose out of or in the course of employment. 

We know that the current eligibility criteria is tight; for example, to be eligible for a compensation for a psychological injury, the injured worker must establish that their employment was a substantial cause of the injury. The Greens believe that the government’s changes to tighten this eligibility criteria will, as the Law Society has also argued, result in increased claims disputation and delays in rehabilitation of injured workers. Therefore, the government bill will make it, in this area, harder to return to work. 

The Greens are very interested and supportive of the principle that injured workers who can establish that negligence by their employer contributed to their injury should be able to access common law to dispute their case. However, that welcome comes with some disappointment about the 30 per cent threshold. We believe that the 30 per cent threshold is too high, and we are surprised that this level is coming from a Labor government. Under the government’s bill, a worker needs to be 30 per cent whole person impaired before they are eligible to make a common law claim for damages against their employer. 

WorkCover figures obtained under freedom of information by my office indicate that of the 1,070 workers with a whole person impairment in 2010-11 only 17 would have been able to satisfy this threshold test. In other words, less than 2 per cent will be eligible to seek common law damages. The government has sought to disguise this reality by redefining ‘serious injuries’ so that only those with near-catastrophic injuries would meet this test. The overwhelming majority would have their compensation payments arbitrarily and unfairly terminated. 

The minister states that there needs to be ‘clear, unambiguous boundaries’ in the scheme, yet the definition of ‘seriously-injured workers’ is set at this arbitrary 30 per cent whole person impairment level, as I have already noted. Under the government’s bill, a worker cannot add up all of his or her workplace injures to generate a sum total of 30 per cent whole person impairment. It has been brought to my attention by the Construction, Forestry, Mining and Energy Union (CFMEU) that some construction workers often suffer multiple injuries during the course of their working life. So, a worker should be able to add the two whole person impairments together. 

Certainly while I was chair of the desal inquiry I heard from several witnesses in this regard, and I remember vividly one particular worker who presented to that inquiry. His life has been destroyed by the workplace injury he has incurred, but the second injury was actually as a result of the first injury being extant, and indeed compounded and made worse by the compensation he needed to make. He is in a position where he will likely never work again; he will certainly never work again in construction. The combination of those two injuries should indeed be seen as part of that whole. They were, in fact, connected. 

In the examples we have been given by the CFMEU, a worker may injure their left knee in a given year and that would amount to an 18 per cent whole person impairment. Then, two years later, that same worker may injure their lower back, amounting to another 18 per cent whole person impairment. The total whole person impairment is then 36 per cent, which of course would raise them over the threshold, but because the impairment arises from two separate injuries, those two 18 per cent whole person impairments cannot be added together. 

This worker, who has a buggered—and I think ‘buggered’ is probably the theme word of the speech—left knee and now a buggered lower back, will not be considered seriously-injured. Even if this point were to be acknowledged by the government, there is a more fundamental problem. The 30 per cent whole person impairment provides a totally unrealistic threshold. The vast majority of seriously-injured workers would, under the government’s definition, be deemed as not seriously injured. In view of these concerns, the Greens will be moving amendments to reduce that current threshold of 30 per cent to 15 per cent. 

A 15 per cent whole person impairment threshold will allow more workers to access ongoing financial support in the form of weekly income maintenance and compensation for medical expenses. We believe it reflects community expectations and, certainly, it has been the advice of those stakeholders we are listening to. What the government fails to recognise is that many workers with a 15 per cent whole person impairment will have little or no capacity to return to work in their pre-injury occupations. A nurse with a chronic back injury or a building worker with severe crush injuries to the lower body are just two examples of this. 

The Greens are also concerned with regard to medical and related services. Our concerns are that all injured workers, other than those catastrophically injured, will not be able to access medical and related services 12 months after weekly payments have ceased. This will have the greatest impact on seriously-injured workers. For example, an injured worker with burns who was able to return to work but subsequently required a new skin graft 13 months later would not be able to make a claim against WorkCover for the costs involved. 

Similarly, a worker with an employment-related lower back injury that flared up again 18 months after an initial return to work would also be denied workers compensation coverage for medical costs involved. The same applies to a construction worker with a work-related knee injury who has returned to work but will need surgery for a knee replacement in five years’ time. Perhaps it would be more beneficial for the Deputy Premier to see how these services could be delivered more efficiently, rather than seeking to undermine injured workers’ entitlements. 

We also have concerns with regards to the lump sum compensation for permanent impairment. Ceasing benefits after a period of 104 weeks unless a worker can meet the 30 per cent whole person impairment threshold will not assist injured workers to return to work. It will, of course, make it harder to return to work. The Greens are concerned about the changes to the lump-sum compensation. The compensation payment is currently provided for under section 43 of the act and set out at clause 58 of the government’s bill. 

I have been advised by the CFMEU that clause 58(9) of the new bill is unfair and ought to be deleted. The consequence of this provision is that a worker who suffers a disc bulge which amounts to 5 per cent whole person impairment can apply for a lump sum payment under both the existing and new systems. However, under the government’s bill, if that worker suffers a subsequent disc bulge amounting to another 5 per cent whole person impairment, which is connected to the original trauma or develops as a consequence of the original trauma, this second disc bulge is not compensable. 

The new bill also provides that an assessment of permanent impairment will be determined at a time determined or approved by the Return to Work Corporation of South Australia. One can imagine a situation where the corporation adopts a policy position of delaying assessments. 

It is not too hard to imagine such things occurring. I think that one should not set up a system, even if one cannot be perfect, as the Hon. Gerry Kandelaars attested to; one should seek to ensure that these sort of mischiefs are not able to be effected in the first place. The current system of assessments being made once injuries have stabilised works, and this adds nothing to the system. Once again, this provision will make it harder for injured workers to return to work. 

The Greens also raise concerns with respect to section 100 of this new bill which provides that the tribunal must be satisfied that there is ‘good reason existing that another party will not be unreasonably disadvantaged before an extension of time will be granted’, yet there is no definition in this bill of what this so-called ‘good reason’ actually is. 

The current act provides that an applicant has one month to dispute a decision of the corporation and may apply to the tribunal for an extension of time. This works well. It may be that when a worker receives notice of a decision he or she is unaware of what it means or what to do, or they may be unable to read the decision or may not be in a position and may only seek legal advice perhaps months later. The government’s proposal, as noted by the Law Society, represents a threat to access to justice for this most vulnerable group in our community. 

It will come as no surprise to members of this place that I will also be moving amendments to ensure cancer compensation equality for CFS volunteers. Members in this place are no stranger to the debates around presumptive legislation for cancer compensation affecting both paid and volunteer firefighters. We believe that the government has missed an opportunity to rectify its previous wrongs in this area and to provide CFS cancer compensation equality. 

I will be speaking more to that amendment when I move it but I put the government on notice that we will not be letting this opportunity pass without that issue being voted on in this place. With that, I also ask the government to provide the Finity actuarial report which I understand has been finalised with regard to the CFS cancer compensation issue. 

Many speakers preceding me have made observations about the lack of a union voice or a workers’ voice with regard to the debates on this bill. There have been some union voices and perhaps they have not been the usual suspects. However, the Greens have heard loud and clear and we have been contacted only in the last few days by labour lawyers and we are waiting for some advice from them because they have some concerns with the bill that they wish to raise with us. We will reserve our right in clause 1 to perhaps raise questions on behalf of labour lawyers. 

We also thank various union groups who, as I said, have made contact with us. A lot has been made about the silence of SA Unions in this debate. If the bill before us was being put here by a potential Marshall Liberal government we would be hearing loud and clear from SA Unions. We would be hearing loud and clear in opposition from the now Labor government. We would see the rallies and we certainly would be having a very different debate. 

It is remarkable that there has been this absolute silence from the most usual suspects and that they have not played a louder and more vocal role on behalf of injured workers. That has been remarked upon and I cannot fail to remark upon it myself. The Hon. Robert Brokenshire had his finger on the pulse when he identified that early in the second reading contributions. 

In his defence, regarding the counterattack he received from the Hon. Gerry Kandelaars about whether or not his words were hypocritical, if the Hon. Gerry Kandelaars had listened to the Hon. Rob Brokenshire’s speech he said, ‘Well, where are the Labor people on this? Where are the unions on this?’ He did say, ‘It’s not my role to be there on behalf of the union movement.’ He quite rightly pointed out that it was, in fact, an expectation historically that the Labor Party would be standing up for the union movement, and one would think that a Labor government would do so. 

How far we have come from the heady days of Donald Dunstan and John Bannon, both of whom actually brought in legislation seeking to significantly improve the lot of workers in this state. I think this South Australian Labor government has lost its memory on these things, but also its heart and its vision. It is now looking for a lowest common denominator approach to fix something that is completely buggered and that was broken, that they were responsible for for over a decade. 

It also appears to me that it is little wonder that the member for Dunstan advised everyone the night before the state poll to vote Labor, because it appears we have two Liberal parties in this parliament and that is probably at least one too many. We certainly have the best Liberal government that Labor can provide. With those few words, I look eagerly forward to the committee stage of this debate.

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