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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