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Where To Now?

As the dust settles in the WorkCover war, we look at what's been achieved and what still needs to be resolved.

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The agreement reached between the Unions and Government on 17 May 2001 set in place a framework for resolving the outstanding issues between them. These issues can be conveniently grouped into five broad categories as reflected in Labor Council's Resolution :

1. The dispute resolution process;

2. The development of guidelines, formula and thresholds;

3. Common Law claims;

4. Employer Non-compliance in the payment of premium;

5. Return to Work issues.

The Government has agreed to:

� Amend the current Workers Compensation Draft Amendment Bill, currently before the house.

� Introduce amendments, which provide for the agreed, dispute resolution process (outlined in the Labor Council's Paper titled "Protecting Injured Workers - A Fairer Alternative").

� Establish an Inquiry into Common Law chaired by Justice Terry Sheehan. The Inquiry will consist of Labor Council, employer and Government representatives on this Inquiry as per the Labor Council Resolution of 17th of May 2001. Labor Council and affiliates will prepare a full and comprehensive submission, which will be presented to the Inquiry.

� The Labor Council has retained the Honourable Jeff Shaw QC to ensure that the new set of amendments reflect the agreement between the Labor Council and the Government in relation to the new dispute settlements.

� The Government has agreed to the majority of the proposals put forward in Labor Councils paper such as:

� A judicial system for the determination of claims (compared to an Administrative System).

� A proper process for medical assessment (not determinative medical panels). The workers will be able to appeal from all medical assessments.

� Workers will be able to select their own doctor from a list of eminent specialists, who are experts in their field. The Workers Compensation Advisory Council will agree to this list.

� Labor Council to nominate their own medical experts to develop guidelines for the assessment for permanent injuries.

� In the interim the status quo for assessing permanent injuries is maintained i.e. the current table of disabilities.

� Labor Council is currently compiling a list of Doctors as its representatives on the working parties. This will be circulated once it is finalised.

� Labor Council will have representation on the Peak Oversight Committee responsible for signing off on the guidelines.

Considerable work is yet to be done in resolving these issues, which involve threshold areas of concern for the labour movement.

1. The Dispute Resolution Process

The Government has proposed the establishment of a new dispute resolution system. It has only provided very minimal information as to how the system will be set up and operated. The Government's proposal includes medical assessment, arbitration and expedited dispute resolution. The major issues to be resolved are:

Medical Assessment

� The manner in which medical assessments and appeals of medical assessments are to be undertaken.

Arbitration

� How the system will operate in relation to arbitration, appeals and cost penalties.

� Who will be appointed to the new system.

� What role, if any, is there for the Workers Compensation Court?

Expedites Assessment for return to work disputes and insurer mis-management of claims

� How will it work?

2. The Development of Guidelines Formula and thresholds

The Unions are concerned that the introduction of American Medical Guideline which adopt an "all of body" approach to the assessment of permanent impairment will result in a reduction in lump sum benefits and also make it harder for workers to meet the current thresholds to allow them to sue their employers for common law damages in the event that injury has occurred as a result of their employer's negligence. The American Medical Guidelines are deficient in many aspects, including the assessment of psychological injury and problems associated with the assessment of back and neck injuries. This needs to be closely analysed. This process will now have the direct involvement of Labor Council.

The effect of the Labor Council resolution is to ensure that the formula for the calculation of benefits and the issue of thresholds are not considered until such time as the medical guidelines are developed. Furthermore any guidelines, formula or thresholds should not disadvantage workers relative to their entitlements in the current system.

3. Common Law Claims

The Government has expressed concerns about aspects of the current Common Law system. The Bill before Parliament sought to address these issues. Any change to the Common Law system has now been deferred pending the outcome of the Common Law Inquiry.

The Inquiry will provide an opportunity to look at the common law system closely, identify problems and provide information. Any amendments can then be considered in an informed way. The Unions will not condone an attack on worker's common law rights but agree that if there are identifiable problems these should be addressed.

4. Employer Non-Compliance

It is a recognised fact that there is a significant problem in workers compensation premium compliance. The Construction Forestry Mining and Energy Union reports 30% non-compliance by contractors in the building industry. The problem is becoming worse. This has resulted in a premium collection system that is not collecting the correct level of premium from across the industry. Legitimate contractors complying with the law are being placed at a competitive disadvantage by unscrupulous operators

Companies fail to comply with their workers compensation obligations in the following ways:

(a) failure to have a workers compensation policy;

(b) underestimating the number of workers they employ including deemed workers;

(c) underestimating the quantum of wages; they pay each year

(d) nominating the incorrect tariff category; ie. pretending that they are operating in low risk industries

(e) engaging in "phoenix" behaviour;

(f) folding companies to avoid high experience rated premiums;

This combines to deprive the managed fund of tens of millions of dollars. WorkCover, under current workers compensation legislation, has proven to be incapable of dealing with this problem. A more innovative approach is required including:

(a) more effective premium collection methods and regulation;

(b) meaningful sanctions which are enforced;

(c) mandatory obligations on principal contractors to ensure compliance by their sub-contract companies

It is only by adopting more radical and direct approaches to the problem will these issues be solved and a level playing field established in industry.

5. Return to Work

The Bill before Parliament does not address the serious issue of employers' failure to provide workers with suitable duties and alternative employment. The provisions in the Workers Compensation and Injury Management Act 1998 are ineffective and more has to be done to make employers provide return to work opportunities.

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  Issue 97 contents

»	Spotlight on HIH�s WorkCover Link
»	Construction Industry Faces Safety Crisis
»	Statewide Strike Off But Della on Notice
»	David and Goliath Battle at IBM
»	Natasha�s Democrats Face Senate IR Test
»	Howard Abandons Working Families
»	City Councils Recognise Birth � Now for the Bush
»	BHP Forced to Back Off Kembla AWAs
»	Impulse Bores Workers Into Submission
»	Coach Drivers Win Permanency
»	Boss Pockets Compo Payment
»	Union Wins Battle in AWA War
»	Publicans Want to Reduce Bar Pay
»	Abbott Agrees to Ban Asbestos
»	Union Acts to Save Leichhardt Refuge
»	Trade Union Choir Turns Ten
»	Activists' Notebook

»	The Soapbox
»	The Locker Room
»	Trades Hall
»	Tool Shed

»	Thanks from Indonesia
»	Hester Spot On
»	Fuelling Voter Anger
»	May Day - The Debate Continues
»	Not a Chaser Fan

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