Return to Work Scheme Sustainability Amendment Bill

Bills, In Parliament, Speeches

The Hon. T.A. FRANKS (15:50): I rise on behalf of the Greens to speak to this bill. The weeks since this bill was first introduced have been a whirlwind. We have finally seen the government consult and listen to injured workers, to unions, to business and to lawyers. This flurry of activity is the work that should have been done before any legislation reached parliament, but I suppose it is better late than never.

I want to be clear, however: this is not how we should be legislating. This process has been completely backwards right from the start, with the surprise introduction of the first bill. I want to thank everyone who approached me and my office with their feedback and concerns regarding this—and that—legislation. It is through your work and your advocacy that we have landed at least somewhere better than that original bill that was proposed.

The Greens appreciate that—although not in the original drafting of this bill—the government will explicitly enshrine the Summerfield principles in this legislation, as flagged in their amendments. I do note here that there are concerns that Summerfield could still be unpicked and that in briefings the government has committed to the Greens to coming back and making further legislative changes to fix this, should that occur. This is encouraging, but I will be asking the government to make that commitment on the record during this debate in the council so that we can have greater certainty.

We really must examine why a court decision that essentially upholds what is already permissible under the act is being treated as something that undermines the existing Return to Work scheme. The idea that because of this decision the scheme is no longer viable and that premiums must rise to unheard of heights is a joke. It ignores the history of the Return to Work Act itself. It ignores years’ worth of court decisions upholding workers’ rights to have their injuries combined for assessment and it ignores the ReturnToWork board and corporation’s fundamental mismanagement of the scheme over the past few years.

The Summerfield decision, and the Preedy decision before it, is not new. The act as written is not new. At the end of the day, the reason we are here is that this government is being effectively held hostage by its own board. Instead of having a thorough, well thought out and consultative review of the act and the scheme, we have whatever this has been over the past few weeks.

We have to ask: why has the board failed to account for the impact of the scheme with regard to the Preedy and Summerfield court decisions, particularly once it became quite apparent that the ReturnToWork corporation’s loss in these cases was inevitable? Why did they continue to waste money that could have gone to injured workers on fighting these fruitless cases? Why have they utterly failed to account for the proper implementation of what the act and the scheme envisioned in the first place when it came to the combination of injuries and assessments? These questions remain unanswered and largely, it seems, uninvestigated. During multiple briefings we have asked for copies of board minutes and correspondence covering the period of these court decisions. We are yet to receive those documents.

Further, it is quite well known that the ReturnToWork corporation has regularly failed to act not only on court decisions such as Preedy and Summerfield, it has also routinely failed to comply with the rulings of the South Australian Employment Tribunal. This has been commonplace to the extent that the tribunal have been deeply scathing of the corporation in its rulings. Even back in 2020, the tribunal was warning that unless the ReturnToWork corporation actually started complying with rulings and fixed its ‘unsatisfactory conduct’, South Australian businesses could face increased premiums as costs rise.

In Return to Work Corporation of South Australia v Leighton, the tribunal dismissed the corporation’s appeal with scathing comments about ReturnToWork’s conduct. The tribunal noted, in its decision:

A failure to comply with orders made by the Tribunal increases cost to the parties, the costs paid by employers by way of premiums in the scheme, the cost to the community more generally associated with those impacts and unnecessary costs thrown away through the wasted resources of the Tribunal. The conduct of other matters, including matters where the parties have dutifully complied with orders made, are unnecessarily delayed. There are a number of reasons as to why an occasional lapse in compliance with orders, rules and practice directions of the Tribunal may occur. However, there can be no justification for the persistent failure to comply in this matter with the associated failure to communicate with the Tribunal.

In most instances, parties are represented by members of the legal profession. That has been so in this matter. There is a professional duty to comply with orders of the Tribunal and to keep the Tribunal properly informed of important developments in the preceding. In this case the deficiencies are also associated with the corporation which is a regular party to proceedings in this jurisdiction and that is an additional concern.

The deficiencies in this matter are not isolated. Indeed, they may have become too commonplace in this jurisdiction. Perhaps the Tribunal has been too tolerant in the past in relation to the failure to comply with its orders in a timely matter. Parties should not expect such an approach to be ongoing.

Sure enough, in the years since we have not seen the conduct of the corporation improve. They have continued to fail to account for certain decisions, and we are now faced with the threat of an increase in premiums above 2 per cent unless (we are told) parliament acts, and that action (the government has been told by the corporation) should mean less access to fair compensation for injured workers because, apparently, and according to ReturnToWorkSA, too many workers accessing the compensation—that on paper, in the act, is rightfully owed them—threatens the scheme.

The scheme is broken. It needs a proper and open review. Undercutting injured workers cannot be the answer. Injured workers should not have to suffer in poverty to cover ReturnToWorkSA’s negligence. The ReturnToWork board and corporation have kept premiums artificially low by essentially breaking, or at least not implementing, the law as intended and as supported by multiple court decisions.

It is clear more than ever that the ReturnToWork board and corporation have fundamentally mismanaged the scheme, and injured workers continue to pay the price for their incompetence. If a workers compensation scheme is deemed to be unstable when it actually has to provide compensation to workers, it is not a scheme worth having and perhaps we should start from scratch. Most importantly, a government elected off the back of a labour movement should not be making injured workers bear the cost of the mistakes of an unelected board.

It has been abundantly clear, from every conversation we have had along the way in consulting and considering this and the previous bill, that something is wrong. This board has been unaccountable and lacking in transparency and has wilfully ignored and failed to account for their court losses over a series of years. Businesses have received artificially low insurance premiums while injured workers have missed out on fair compensation as a result. This cannot be how a workers compensation scheme operates, and the Greens will be having more to say about the ReturnToWork board itself, and what we can and must do to fix that, later this week.

The unionists, the workers, the doorknockers and campaigners who got this government into power probably still have blisters on their feet to show for that hard work, yet is this legislation really how the Malinauskas government thanks them for their efforts? Does the Malinauskas Labor government represent the labour movement, thanking them for their support through those years in opposition and thanking them for their hard work to get a Labor government back at both a state and federal level by immediately discarding them after those elections, by ignoring their concerns, their voices and their feedback?

Is this the future Labor said it was standing for throughout its campaign? I hope not. A future where injured workers are discarded for the whims of an unelected board, a future where the labour movement is tossed aside to placate businesses and corporations ahead of considering other options, is a bleak future. I am quite confident that that is not the future South Australians voted for.

Having said all that, the Greens do recognise that this bill is an improvement on the original version put forward and that the government has gone further to address concerns and fix problems with its suite of amendments. But what continues to be our key concern is the fact that, despite the positive steps forward, taken with enshrining the Summerfield principles and providing better access to redemptions, this bill still raises the whole person impairment threshold to be considered a seriously injured worker up to 35 per cent for physical injuries.

It is the opinion of the Greens that the 30 per cent threshold for both physical and psychiatric injuries was already too high, which we flagged during the original debate back in 2014. Even then, this means that pretty much only those with near catastrophic injuries would meet that test. I cannot imagine a 35 per cent threshold being any better for workers, even when the government argues that workers will be able to combine their injuries now, which would make the threshold more attainable for some. Arguably they already could—that is the point really—and they have already struggled to meet the 30 per cent threshold for fair compensation.

We are not unique in our concerns around the already high and about-to-be-higher threshold. Back in 2017, the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation conducted an inquiry into the Return to Work Act and scheme. That committee’s report notes the problems and inconsistencies with this threshold, stating:

The committee notes the whole-person impairment assessment is not necessarily indicative of an individual’s ability to work. The Australian Education Union and others argued by solely using this threshold it will result in workers who are unable to work but still have their payments ceased at 104 weeks as they do not meet the criteria for ongoing support.

Further, witnesses providing evidence to that committee described the threshold as an ‘actuarily devised contrivance’. I cannot see how this debate and this bill do anything other than prove that true. These numbers, these arbitrary thresholds, do nothing to aid injured workers and are designed purely for the financial benefit of the scheme and the corporation.

While we were glad to see the withdrawal of the original bill, and we voted for that to be discharged, it must be said that the current bill as it stands, unamended, has some quite serious and concerning deficiencies that would leave workers worse off. For one, the bill as introduced does not actually enshrine the Summerfield principle, which was one of the main reasons we were told the legislation would be brought forward. This is proposed to be addressed in government amendments to the bill. I do commend the work of the Hon. Connie Bonaros on this matter in particular, but it is rather a large oversight to have missed in the original version of this bill.

Further, unamended the bill would deny lump sum economic loss payments for a number of workers who sustain later work injuries after a first work injury. The proposed amendments to section 56(6) mean that any worker who suffers a further injury unrelated to their first injury will no longer receive any lump sum if their subsequent injuries are determined as less serious than their first injury, regardless of how that injury impacts their ability to work. This is deeply concerning and has been raised as an issue with us by several stakeholders, though we are pleased that the government has now filed amendments that will remove those changes.

That being said, it is concerning that this change was entertained in the first place. Perhaps this could have been avoided had the bill been properly consulted upon from the outset and not put together in such a rush. I could go on, but I want to get on with the debate today. There are multiple sections of this bill that have needed serious work over the past few weeks and, while that work has now largely been done and is reflected in the amendments that have been filed, it is concerning to think that the government has not thought to do this work in the first place, and that it has fallen on unions, businesses, lawyers and workers to identify some of the serious deficiencies and omissions in the original government bill.

The Greens do appreciate the constructive nature with which the government has handled our concerns and the concerns raised, and their willingness to make these amendments, but we, like many others, have been frustrated that the consultation process essentially has happened backwards, and that is what we are left with: trying to find small fixes for suboptimal legislation.

With that in mind, the Greens are of the view that many amendments need to get through this committee stage and be made to make this legislation more tolerable, because unamended the bill is a disaster, and we flag now that any future reviews of the Return to Work scheme and legislation, which the government has committed to do, need to be far more thorough, timely and well consulted. We cannot and we will not accept further attacks on injured workers.

I note, and I am sure others will as well, we will have many questions during the committee stage and look forward to the minister’s prompt and detailed responses, placing those matters on record. It is vital that we have complete information when voting on this bill, and the Greens will be watching and participating in that debate on the proposed amendments closely. I flag that that debate will shape our vote at the third reading.

I also note correspondence that I received yesterday from Dale Beasley, who is the Secretary of SA Unions. He wrote to me following an executive meeting of SA Unions:

Dear Tammy,

It is the strongly held view of SA Unions that the precedent set by the outcome of the Summerfield case represents the true and proper application of the law. Those principles are foundational and protecting the combining principles of Summerfield has been a central concern of the union movement as we have engaged with the government over their Return to Work Amendment Bills.

The bill proposed by the government does not have our universal support, there are many things which we advocated for and some of those things were not achieved. However, the current package of amendments do contain protections of the Summerfield principles and many other measures which we support and, importantly, the government have also committed to reviews of the system to consider its management and effectiveness, and how both could be improved in an ongoing manner.

Faced with the alternatives; the original Bill that proposed to undo the Summerfield decision, or continued litigation of combination injuries, it is difficult to see how passing the government’s current Bill with the amendments currently proposed that add protections for injured workers, could be criticised.

As far as unions are concerned, the work to improve the right of injured workers does not stop here. The Return to Work system is still one stacked against injured workers and our united union movement is committed to continue campaigning for improvements to ensure workers received the highest possible levels of support. We will continue pursuing necessary improvements to the system, be they legislative, organisational, or cultural and hope that we will continue to be able to rely on your support.

Kind regards,

Dale Beasley

Secretary of SA Unions

I share that with the council because I received that after 4pm yesterday, so I know not all members of the council may have been privy to that particular correspondence. With that, we do intend to support the second reading and participate in the committee stage and reserve our right at the third reading.