Showing posts with label Workers Compensation. Show all posts
Showing posts with label Workers Compensation. Show all posts

Wednesday, May 19, 2004

Don't add insult to injury!

Lisbeth Latham

On May 13, chanting, "What do we want? — Workers' comp!", more than 2500 workers marched on the Western Australian parliament. The rally was organised by the Construction, Forestry, Mining and Energy Union (CFMEU), the Maritime Union of Australia (MUA) and the Electrical Trade Union (ETU) in response to new workers' compensation legislation introduced into parliament on May 5.

CFMEU state secretary Kevin Reynolds told the rally the amendments do not go far enough and will leave "WA having the worst workers comp system in Australia".


The new legislation will restrict injured workers' access to common law, as secondary impairments, including psychological ones, will no longer count for the threshold that allows such legal action. The rally demanded: no maximum in payments; reintroduction of journey cover; and no threshold for access to common law damages.

MUA branch secretary Chris Cain told the rally that the legislation "was nothing more than Liberal legislation".

Reynolds threatened ongoing action unless the government "becomes a more sympathetic government to the working class". He welcomed the support for the rally from the MUA, the Communications, Electrical and Plumbing Union (CEPU) and rank-and-file members of the Australian Manufacturing Workers Union, but attacked union leaders, including UnionsWA secretary Stephanie Mayman, who were not supporting the rally or the campaign for a better workers' compensation system.

Rally speakers included the partners of killed construction workers, ETU organiser Peter Carter, workers' compensation lawyer and activist Paul O'Halloran, CFMEU assistant secretary Joe McDonald and Greens MLC Jim Scott, who promised that the Greens would try to amend the legislation in the interests of working people.

State industrial relations minister John Kobelke defended the legislation, telling the May 14 West Australian that it would "provide $130 million in extra benefits to injured workers". Socialist Alliance senate candidate and MUA activist Ian Jamieson told Green Left Weekly that the figure only looked at statutory benefits and was "a pittance" in comparion to the savings of insurance companies from tightening common law benefits.

Mayman told the West Australian, "attempts to overturn the reforms could leave us with the dreadful system we've got now and no-one wants that".

Jamison argued that this misses the point, because a real fight by the unions could force a backdown. At the moment, he said, the ALP was mostly held back by its "commitments to protecting insurance company profits, which already stand at $270 million a year".

From Green Left Weekly #582

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Wednesday, February 11, 2004

WA Labor's new workers compensation laws

Lisbeth Latham

On January 29, John Kobelke, minister for Consumer and Employment Protection, released Restoring Fairness, Balance and Certainty: Workers' Compensation Reforms. The document's introduction states that it is the final stage of checking before the legislation is submitted to parliament.

The state Labor government has argued that the amendments will provide workers with improved access to benefits, injury management and greater legal protection. However, the legislation has made limited advances in protecting workers' rights.

The cap on weekly benefit payments will be increased to two-times average weekly earnings, from one-and-half. This payment will be reduced by 15% after eight weeks; it is presently reduced after four weeks.

Weekly benefit payments will still be limited. For workers with permanent total incapacity, the maximum prescribed amount can be extended up to $228,0000, up from $50,000.

The prescribed amount is the total amount available for any injury; if an injured worker dies then his or her dependents receive the prescribed amount, minus any weekly payments already received.

The amendments propose reintroducing lawyers into the whole system (rather than simply during final appeals) and the creation of a new Workers' Compensation Dispute Resolution Authority, which will oversee a process of conciliation conferences and arbitration.

Under the existing legislation, "injury management" — the process by which injured workers return to work — was voluntary, and only vocational rehabilitation was required. Labor's amendments would require large employers to develop their own policy and procedures for injury management and encourage insurers to provide resources for smaller companies to develop these as necessary.

Labor also proposes that injured workers be legally required to participate in injury management and rehabilitation activities. Failure to do so could result in the stoppage of payments.

While workers should have the option of returning to work, and employers be legally required to make arrangements to facilitate this process, Labor's amendments are not aimed at giving workers greater options. Instead, they are aimed at saving employers and insurers money by compelling injured workers to participate in attempts to return to work, and allowing an earlier reduction in weekly compensation payments.

Labor proposes to maintain the "two-gate" system for access to common law introduced by the state Coalition government in 1999. Under this system, injured workers assessed to have a "whole person impairment" (WPI) of greater than 25% (currently the threshold is 30%) are eligible to receive uncapped compensation payments.

For workers assessed to have a "serious impairment" of between 15% and 25% compensation is capped at a maximum of $275,000. Labor's updated amendments maintain its previous position to exclude workers' secondary and consequent impairment, including psychological impairment, in assessing WPI. This is aimed at reducing workers' access to civil damages.

The proposed amendments will extend the deadline for seeking common law damages to 12 months, extendable by an additional six months.

Workers with a serious impairment will also no longer lose their entire statutory benefit. Instead, all coverage of medical and other expenses will cease and weekly payments will be reduced to 70%, then to 50% after three months and cease after six months.

As common law damages are reduced by the amount of weekly benefits that the worker has already received, the phasing down of benefit payments and ending of coverage of medical expenses can only be interpreted as intended to dissuade injured workers from making common law claims.

From Green Left Weekly #570

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Wednesday, October 1, 2003

WA Labor maintains antiworker bias in compo system

Lisbeth Latham
PERTH — During the 2001 Western Australian election campaign, the ALP campaigned on the basis that it would ensure the "maintenance of a fair and efficient workers compensation system". Central to this system would be a "better balance between statutory payments and common law" which would "open up greater access to common law for injured workers".

In March of this year, Premier Geoff Gallop's Labor government released an updated version of its intended amendments to the Workers Compensation and Rehabilitation Act. The proposed amendments are centred on four areas — changes to statutory benefits; coverage for medical treatment; dispute resolution; injury management and the access of workers to common law.

Labor plans to increase the cap on weekly payments to two times average weekly earnings from the current cap of one-and-half AWE, increasing the maximum benefit from $977 to $1303. This payment will be reduced by 15% after eight weeks; it is presently reduced after four weeks.

The extension of the period of payment is expected to benefit some 4800 injured workers annually. After eight weeks, the injured worker's overtime earnings will not be included in calculations for weekly benefits.

The length of time that benefits can be received is governed by the prescribed amount, which will remain at a maximum of $130,609. For workers with permanent total incapacity the maximum prescribed amount can be extended by 75% or $97,956.75, to $228,565.75 (previously the maximum extension was $50,000).

The prescribed amount is the total amount available for any injury; if an injured worker subsequently dies then his or her dependents receive the prescribed amount, minus any weekly payments already received.

Under the proposed amendments, workers in receipt of statutory benefits will be allowed to exceed the maximum medical entitlement of $39,182.70 by $2000. In exceptional circumstances, workers will be able to receive unlimited coverage for medical expenses; previously this could be increased by $50,000, although there are no specific criteria provided in the government's proposal for when this would occur.

The amendments propose restructuring the way in which disputes over workers compensation will be resolved. These changes include the reintroduction of lawyers into the whole system (rather than simply during final appeals) and the creation of a new Workers' Compensation Dispute Resolution Authority, which will oversee a process of conciliation conferences and arbitration.

Under the existing legislation, "injury management" — the process by which injured workers return to work — was voluntary and only vocational rehabilitation was required. Labor's amendments would require large employers to develop their own policy and procedures for injury management and encourage insurers to provide resources for smaller companies to develop these as necessary.

Labor also proposes that injured workers be legally required to participate in injury management and rehabilitation activities. Failure to do so could result in the stoppage of payments.

While workers should have the option of returning to work, and employers be legally required to make arrangements to facilitate this process, Labor's amendments are not aimed at giving workers greater options. Instead, they are aimed at saving employers and insurers money by compelling injured workers to participate in attempts to return to work, and allowing an earlier reduction in the level of weekly compensation payments. The government's estimates indicate that compulsory injury management will deliver a saving of 2.5% on the total cost of the workers compensation system.

Labor proposes to maintain the "two-gate" system for access to common law introduced by the state Coalition government in 1999. Under this system, injured workers assessed to have a "whole body impairment" (WBI) of greater than 25% (currently the threshold is 30%) are eligible to receive uncapped compensation payments.

For workers assessed to have a "serious impairment" of between 15% and 25% compensation is capped at a maximum of $274,278; this is a reduction of the threshold, from the current act, by 1%.

Not only does Labor's proposal fail to reverse the restriction in access to common law introduced by the Coalition government, it extends this restriction by stopping the inclusion of secondary and consequent impairment, particularly psychological impairment, from being included in any assessment of WBI (as is presently done), although these can be included in considerations of the amount of compensation.

This is justified in the proposal on the basis that it is difficult to obtain consistent assessment of the level of this impairment. While the government's proposal does bring consistency, workers will be consistently denied the right to seek common law damages.

The proposed amendments will extend the deadline for seeking common law damages to 12 months, extendable by an additional six months for workers who can demonstrate their condition has not stabilised.

Workers with a serious impairment will also no longer lose their entire statutory benefit. Instead, all coverage of medical and other expenses will cease and weekly payments will be reduced to 70%, then to 50% after three months and cease after six months.

As common law damages are reduced by the amount of weekly benefits that the worker has already received, the phasing down of compensation payments and ending of coverage of medical expenses can only be interpreted as intended to dissuade injured workers from making common law claims.

From Green Left Weekly #556.

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Wednesday, September 17, 2003

Workplace safety: Workers die, bosses profit

Lisbeth Latham

Between July 2000 and June 2001, more than 300 workers were killed and more than 220,000 workers were injured in Australian workplaces. This is on top of the 2254 workers killed, and the 900,000 workers injured, during the previous six years. Yet, despite this being responsible for many more deaths than terrorism, many who suffer from workplace accidents are left bereft by employers and the state.


For workers and their families, workplace injury is something to be dreaded. Aside from the pain and suffering, income lost from time off work is combined with increased expenses for medical treatment often leading to considerable financial strain. This hardship is being made steadily worse as state and federal governments have reduced payouts for workers’ compensation.

Federal workplace relations minister Tony Abbott has plans to make it even worse. He is keen for the federal government to take over state workers’ compensation schemes, claiming this would ``simplify’‘ the scheme. But, while workers’ compensation schemes are a maze of different rules, the federal government’s rules are among the worst for workers. Without proper compensation, workers injured because the bosses couldn’t care enough can have their lives ruined, if not ended.

At the moment, the amount that injured workers can get varies widely depending on which state they live in, and whether they are employed under a state or federal award. The Comparison of Workers Compensation Arrangements: Australia and New Zealand, published by the Heads of Workplace Safety and Compensation Authorities, summarises the situation.

The death of a family member at work is devastating. Dealing with the emotional cost, however, is made much harder by the financial instability caused by losing a wage earner.

Workers in Western Australia run the greatest risk of financial ruin. The maximum available for the family of a killed worker is $130,609 plus $34.30 per week for each dependent child. The highest payments for death are those in Queensland and New South Wales.

In Queensland, the family can receive up to $263,255. For dependent children there is an additional lump sum of $9875 and a weekly payment of 7% of average Queensland ordinary time earnings. In New South Wales, payment is capped at $275,350, with a weekly payment of $86.60 for a dependent child.

But death is not the only fear of workers. Injury, with the resulting pain, family reorganisation, and financial strain affects thousands of households every year.

In Tasmania, incapacitated workers receive 100% of their normal weekly earnings (worked out on an average of the last year) for the first 13 weeks after injury. Between then and the end of a year after the injury, they get 85% of their normal earnings. Then they receive just 70%, which cuts out altogether 10 years after the injury first occurred.

In South Australia, incapacitated workers get the equivalent of their average weekly earnings for the first year after injury. This has a cap on it set at double the South Australian average wage. After the first year, a totally incapacitated worker will get 80% of their average earnings. This is capped, however, much lower, at 80% of the states average weekly earnings. Partially incapacitated workers receive the difference between this cap and what they could still earn in employment.

In Western Australia, the cap on weekly benefits is set at $977.80. During the first four weeks following injury, workers’ payments are based on their average earnings over the previous 13 weeks, including overtime, bonuses and allowances. After the fifth week off the job, only ordinary earnings are included. An analysis of the Australian Bureau of Statistics data suggests that injured workers would have a roughly 4% drop in income then. This would be even more dramatic for workers in the construction, manufacturing, mining and transport industries, where the majority of work place injuries occur. Their benefits would be reduced by 8-10%.

Western Australia also limits the maximum total benefits to $130,609. Permanently and totally incapacitated workers (who can’t work again) can have this increased by $50,000. This translates to about three years and seven months on the maximum allowance. After that, these people are on their own.

Those on the federal award can get their normal weekly earnings for 44 weeks, although this is capped at $1300 a week. After that, they get 75% of their former wage.

But it isn’t just the income drop that hits the families of injured workers. It is also the cost of medical care. All workers’ compensation schemes have an allowance for this, but, again, the amount varies considerably.

The federal government, the Northern Territory government and the state governments in South Australia and Tasmania place no cap on refunds for medical care. Queensland’s legislation places no limit on the amount of medical and rehabilitation costs, but limits the amount of private hospital fees to $10,000. The Victorian government cuts funding for medical services 52 weeks after the end of income payments.

In New South Wales, workers can receive up to $50,000 in treatments. This can be increased by the Workers’ Compensation Commission. Occupational rehabilitation is capped at a further $1949.50.

In Western Australia, workers can get up to $39,182.70 in medical services and the Conciliation and Review Directorate can increase this amount by $50,000. In the ACT, employers are liable to pay for the cost of treatment in relation to injury. This includes the cost of replacing glasses, contact lenses, prostheses and other artificial aids and the cost of wages lost, transport and accommodation.

So while workers’ compensation laws offer some protection to injured workers, they still enshrine a drop in income for the sick and injured.

This can put injured workers on the scrapheap, struggling to meet mortgage repayments and pay bills. Some workers have to increase their debts, in order to redesign homes to fit wheelchairs or buy new cars.

Lump sum payments provided through some workers' compensation schemes, or fought for through civil court actions, can alleviate this. These payments can also provide compensation for the pain and suffering that workers may have experienced.

Lump sum payments vary considerably across states. In Western Australia, while there is a lump sum of up to $130,609 for workers with permanent injuries, accepting it requires both waiving the right to take legal action and a reduction in the weekly income payments.

In Queensland, workers can get a maximum amount, in either lump sum and weekly benefits, of $157,955. This can be doubled for workers with a work-related impairment of 50% or more.
In both Victoria and NSW, the governments have moved to increase the total lump sum available to injured workers. In 2001, the NSW government doubled the maximum from $100,000 to $200,000; while in Victoria in 1997 the payment was increased to $337,380 from $104,990. However in both cases the threshold at which these payments are available was significantly increased. These larger lump sums are only available to workers with almost total impairment, in Victoria 80% and New South Wales 75%.

Under the federal government scheme, the maximum payment for permanent impairment is $127,063.76, with an additional maximum of $47,648.94 for non-economic loss. To be eligible for a lump sum payment workers must have an assessed whole-body impairment of 10%; an exception is made where the loss is of fingers, toes, hearing, taste or smell.

So even lump sums do not provide workers with funds when they need it most. Access to civil damages to ensure financial security, including recovering lost earnings and the restoration and maintenance of quality of life, are important to protect workers.

In addition to payments that are part of the statutory benefits that injured workers are entitled to, workers can take civil cases of damages to the courts. However, state governments have sought to limit this, placing legal barriers in the way.

This is outrageous. Far too many workers are injured and killed on work sites because employers cut corners, do not provide adequate safety training or put pressure on employees to unreasonably increase the intensity of their work. To deny workers whose lives have been all but destroyed access to the courts to relieve the financial pressure of injuries is below contempt.

Common law rights to sue employers for injury have been abolished federally, in the Northern Territory and in South Australia. This was done federally by Labor governments, in the Northern Territory from 1987 and in South Australia from December 1992. Common law rights were abolished in Victoria in 1997 by the government led by Liberal Jeff Kennett; they were reinstated when Labor won power in 1999, but with reductions in maximum payment for pain and suffering to $14,000.

In 2001, the NSW state Labor government passed legislation that limited access to common law rights. Only workers assessed to have lost 15% of their whole body are now able to go to court. The legislation limited compensation awards to those based on loss of wages and future loss of earnings. In order to receive any award, a worker must prove that his or her employer was negligent.

In Western Australia, workers have access to two “gates” for common law. The first “gate” is for workers with a disability assessed at 30% or more, there is no prescription on the level of award. The second is for workers with “significant disability”; (impairment of between 16% and 30%) who may receive a maximum of $274,278. Workers must decide to access common law within six months of injury, those workers with a “significant disability” must elect between receiving statutory benefits and instituting civil law proceedings: if they take court action, their benefit is stopped.

In Queensland, civil law proceedings are available to all workers who suffer a permanent impairment. Workers whose impairment is below 20% must make a decision between a lump sum payment of $263,255, less any money received as weekly payments, or accessing civil law. Workers who suffer a permanent impairment of more than 20% are entitled to both the lump sum and civil damages.

In Tasmania, common law damages are only available to workers with a 30% permanent impairment. Civil proceedings must be started within two years of receiving the first statutory payment.

In the ACT there is no restriction on accessing common law proceedings.

The drive to reduce the level of compensation payable to injured workers is aimed at reducing the premiums paid by companies to workers’ compensation programs, and increasing their profits. The Melbourne Age reported on August 15, 2002, that between December 31, 2000 and 2001, Victorian Workcover had halved the unfunded liability from $1074 million to $533 million, and that it was expected to have sufficient assets to cover total liabilities by 2004. This has been improved largely as a result of restrictions in compensation.

Many unions have been trying to fight this drive to take money from the workforce’s most vulnerable and put it into the bosses’ pockets. These fights need your support.

Originally published in Green Left Weekly #554

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Wednesday, September 10, 2003

Workers to strike over workplace deaths

Lisbeth Latham

PERTH — Four-thousand members of the Construction, Forestry, Mining and Energy Union (CFMEU) are expected to strike on September 8, demanding safer working conditions in the construction industry, following citywide stop work meetings on September 4 and 5.

The strike is part of an escalating campaign of industrial action that began when 1000 construction workers walked of the job on August 29 and occupied the foyer of the state Labor government's ministerial offices. Four days later, 350 workers on seven Perth building sites staged a 24-hour strike in protest at unsafe working conditions.

The demonstrations have been called in response three incidents. The first was the decision by the Builders Registration Board to drop charges of negligence against a builder on whose site a worker was killed in September 2002 in an accident.

CFMEU construction division assistant state secretary Joe McDonald, speaking at a Socialist Alliance-organised forum on August 30, said that WA employment protection minister John Kobelke had promised the union that the government would strip the builder of his ticket.

Instead, the builder had been allowed to continue operating. This is despite the CFMEU having to conduct 16 separate stoppages over unsafe work practices on the builder's site in the last 12 months.

The second incident was the decision by Transfield Engineering to appeal a conviction for the workplace death of construction worker Joseph Guagliardo in 2000. This appeal is holding up the compensation claim for Guagliardo's widow.

The final incident was the death on August 28 of a worker on a Robe River construction site, bringing to 23 the number of workers killed on construction sites in the last 14 months in WA.

From Green Left Weekly #553.

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Revitalising Labour attempts to reflect on efforts to rebuild the labour movement internationally, emphasising the role that left-wing political currents can play in this process. It welcomes contributions on union struggles, internal renewal processes within the labour movement and the struggle against capitalism and imperialism.

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