South Australian Parliament. Hansard House of assembly
WORKCOVER
Question:The Hon. I.F. EVANS (Leader of the Opposition):
Will the Minister for Industrial Relations advise the house whether the WorkCover Board has received any advice that WorkCover's unfunded liability is at risk of blowing out to $1 billion if changes to the WorkCover scheme are not made? WorkCover's unfunded liability has already reached $694 million. The annual report states that, if there is no improvement in the non-redemption or return to work rate, another $300 million could be added to the unfunded liability. This would make the unfunded liability $1 billion.
Answer:The Hon. M.J. WRIGHT (Minister for Industrial Relations): That is already in the public domain. I think that, when I returned from sick leave, I made a ministerial statement. Also, of course, the annual report in which reference is made to that particular item has been tabled.
The Hon. I.F. EVANS: Will the Minister for Industrial Relations advise the house whether the WorkCover Board has received any advice confirming that, without changes to the legislation, WorkCover's unfunded liability is at risk of blowing out to $1 billion? The statement from the Chair of WorkCover in the most recent annual report states:
There is a limit to how much impact reform of the WorkCover business, as opposed to the WorkCover system, can have on the financial sustainability of the scheme.
The annual report raises the risk of another $300 million being added to the unfunded liability.
The Hon. M.J. WRIGHT: I am not too sure where the Leader of the Opposition has been, but last year I made a ministerial statement, I tabled the annual report and, to the best of my recollection—
Members interjecting:
The SPEAKER: Order! I cannot hear what the minister is saying.
The Hon. M.J. WRIGHT: I made a ministerial statement when I returned from sick leave. I would need to check that statement but, to the best of my recollection, I made the point that I was engaged in discussions with WorkCover about potential changes, and I tabled the annual report.
Members interjecting:
The SPEAKER: Order!
The Hon. I.F. EVANS: My question is to the Minister for Industrial Relations. Has the government received any advice that, if it does not change the WorkCover scheme or the legislation, WorkCover's unfunded liability is at risk of reaching $1 billion? In the annual report, Chairman Bruce Carter states:
The question remains whether administrative and management changes alone will be enough to turn the scheme around.
The government has an observer on the WorkCover Board who reports back to the government.
The Hon. M.J. WRIGHT: I do not know how many times the leader wants to ask the same question, but he has asked the same question on three occasions. As I have said previously, when I returned from sick leave I made a ministerial statement and I tabled the annual report.
Members interjecting:
The Hon. M.J. WRIGHT: It is all in the annual report for you to read.
The Hon. I.F. EVANS: Is the Minister for Industrial Relations concerned that, if WorkCover's average discontinuing rate for claims older than three years remains at the same level experienced over the past five years, WorkCover's unfunded liability is at risk of blowing out to $1 billion? Notes to and forming part of the annual report state that, if projected improvements in those areas do not occur, WorkCover's unfunded liability could increase by $300 million, taking the total unfunded liability to $1 billion.
The Hon. M.J. WRIGHT: I would need to go back and check it but, to the best of my recollection, I made a full ministerial statement about our concerns in regard to WorkCover. If it was not in the ministerial statement, it would have been in answers to a range of questions I think asked by the shadow minister, in which I stated that we are concerned about the level of unfunded liability and concerned about the average levy rate. Make no mistake—
Members interjecting:
The SPEAKER: Order!
The Hon. M.J. WRIGHT: Everyone, including the Leader of the Opposition, knows that the return-to-work rate has plummeted since as far back as 1995. That is as clear as day. What we need to do is get more people back to work, and that is what we are actively engaged in doing. Some of the reference that the leader has made is in the annual report, and I tabled that report before Christmas. I would need to check the report, but I think there is also reference to the fact that, at this stage, because they have not been around very long, they have not been able to factor into their numbers the introduction of EML. As I have said previously, the change to the regulations and the introduction of EML is a fundamental change to claims management that will improve return to work. Are there other ways? Probably there are, and we are looking for them.
The Hon. I.F. EVANS: The Minister for Industrial Relations has been responsible for WorkCover for five years. Can he explain to the house why WorkCover has the worst return-to-work rate in the nation? The Chair of the WorkCover Board stated in the last annual report that increased return to work remains fundamental for improving the social and economic outcomes of the scheme and that, to achieve that, it may be necessary to effect legislative change to ensure that essential levers exist to meet the objectives of the act.
The Hon. M.J. WRIGHT: Yes, I can answer that question. In part, I have alluded to it in my previous answer. If you look at the return-to-work figures, the return to work plummeted as far back as 1995. The reason why we have the worst return-to-work rates is that we have long-term claims that we did not get back to work. Why did we not get people back to work? There is a range of reasons but, fundamentally, we had regulations in place that did not provide the claims managers with the correct incentives to get people back to work. What has this government done about it? It has changed the regulations in the parliament so that we now have the correct incentives and penalties in place for whoever the claims management agent is.
What has the board done? It has chosen EML to manage the claims management, and we will see the benefits of those results. This problem dates back to long-term claims that were in the system as far back as 1995, where we have not been doing well at getting people back to work.
Question: Mr WILLIAMS (MacKillop): My question is also to the Minister for Industrial Relations. Minister, you have been responsible for WorkCover for more than five years. Will you explain to the house why during that time WorkCover's unfunded liability has blown out from $67 million to $694 million?
The SPEAKER: I remind the member for MacKillop to address his remarks through the chair.
The Hon. M.J. WRIGHT: It is because the actuaries have caught up with the bad business of the previous Liberal government.
Mr WILLIAMS: Having been responsible for WorkCover for more than five years, will the Minister for Industrial Relations explain why WorkCover is now the worst performing scheme in the nation? In January this year, WorkCover CEO Julia Davison was quoted in The Advertiser as saying that the South Australian scheme is `the nation's worst performing despite an overhaul of management and procedures during the past two years'.
An honourable member: Shame!
The Hon. M.J. WRIGHT: I do not know about shame. I do not know why the shadow minister does not go back to my ministerial statement where I talk about the level of the unfunded liability and the average levy rate. It is five years today, but we have to go back to 1995. That will show that the return to work plummeted from 1995. As a result of return to work plummeting, we were not getting people back to work and we had long-term claims in the system. I have already talked about the change in the regulations to provide incentives and penalties to the claims management agent. That should have been done by the previous Liberal government.
Mr WILLIAMS: My question is to the Premier. Has the Economic Development Board expressed concern that WorkCover's unfunded liability is at risk of reaching $1 billion; and, if so, has the Economic Development Board suggested any changes to the scheme?
Answer: The Hon. M.D. RANN (Premier): I am delighted to be able to make a major announcement today in relation to the Economic Development Board; and then I will deal with the issue. It is extraordinarily prescient for the honourable member to ask this question. I am delighted to tell the house about the appointment of three new high calibre members to the state's Economic Development Board. The EDB is the government's key adviser on economic policy and development and I am pleased that in the future we will have the very best advice from members with experience at the highest levels of information, biotechnology and finance industries. The Economic Development Board represents a unique partnership between government and business for the future prosperity of South Australia that has already proved its worth. Telstra BigPond Group Managing Director Justin Milne, TGR BioSciences Chief Executive Dr Leanna Read—
Mr WILLIAMS: I rise on a point of order, Mr Speaker. Whilst this information is very important—and I am sure the Premier will have the opportunity to make a ministerial statement after question time—the question is whether the Economic Development Board has expressed concern about the unfunded liability of WorkCover.
The SPEAKER: The Premier will get to that.
The Hon. M.D. RANN: Of course, but obviously members want to hear the context and the calibre of the people. Mr Kevin Osborn is a financial specialist. They have all agreed to join the South Australian Economic Development Board. The appointment of Justin Milne and Leanna Read will bring considerable expertise to the EDB in the knowledge-based industries of bioscience and information communications technology. Dr Read is a highly regarded South Australian scientist, one of the pioneers of the state's biotechnology industry. Her experience in managing the transition of TGR's technology from the research laboratory to a successful commercial enterprise is particularly valuable.
Justin Milne is responsible for successfully driving the growth of BigPond's internet service provider business, BigPond's brand and Telstra's internet content. Mr Milne, who is a prominent South Australian, graduated from Flinders University and now lives in Sydney. In addition, the appointment of Kevin Osborn to the board will bring a wealth of financial sector experience. Mr Osborn has played a significant role, both locally and internationally, in the finance sector having served as Regional Chief Executive for Australia, New Zealand and Singapore for Bank One. He is now a non-executive director of Adelaide Bank and ABB Grain. His strong commercial acumen and financial management skills will be a great asset to the EDB. Justin Milne and Leanna Read, particularly, will help the board in South Australia to focus on the knowledge-intensive industries of the future, and help us achieve key targets in South Australia's Strategic Plan.
South Australia's economic development future depends on innovation in both the emerging technology sectors and new approaches to our traditional industries. Innovation is central to the update of the strategic plan released in January. Similarly, Mr Osborn's appointment will help us attain those targets related to venture capital, business investment and infrastructure, to mention just a few. I am pleased that three such dynamic business people are keen to join the EDB, and look forward to working with the board in coming years. Like the existing EDB members, the new members will play a hands-on role in promoting our state's key economic interests. On the issues of WorkCover, I will report back to this house sine die.
WORKCOVER
Speech: Mr WILLIAMS (MacKillop): Today we saw the Minister for Industrial Relations and the Premier fail to take the opportunity to convince the house that WorkCover is not in even more serious danger than we had previously thought. A number of members on the government front bench tried to indicate that, because the report was handed down in December last year, the opposition should have been all over this some months ago. The reality is that parliament has sat for only two weeks since then. We all know that the minister received the report at least two months before he tabled it, at least two months before he released it. He sat on it for months and months waiting for the parliament to close down for the Christmas break. So, I think it is a bit churlish of the government to suggest that the Liberal opposition should have been over this is a bit earlier.
The reality is that the report discusses the very serious risk that the WorkCover unfunded liability as at 30 June last year was, in fact, $1 billion and not the $694 million that the minister reported in his ministerial statement to the house last December. I will read from the report for the benefit of the house, because I am sure that the minister will never inform the house of this information. I will read from the WorkCover annual report on page 78. We are talking about the `Notes to and forming part of the financial statements to 30 June 2006' and the unfunded liability. The report states:
The valuation of the outstanding claims liability is strongly dependent on the assumptions adopted in relation to the duration of claims and in particular long-term claims. In each of the Scheme's valuations since 2003, the Scheme's actuary has adopted a view in relation to these key assumptions that the discontinuance rates for long-term claims would be better in the future than those that the Scheme had experienced over the short-term as a result of initiatives being developed by WorkCover to reduce the number and cost of long-term claims with a reduced emphasis on redemptions.
I tell the house that that hope and wish have just not occurred. When I question the minister in the house, he tells us time and again that he is trying to get away from redemptions. What he is doing is keeping people on long-term claims into the future and driving up the unfunded liability of WorkCover. In fact, he is challenging the very viability of WorkCover into the future. The report further states that, if there is no improvement in the non-redemption discontinuance or return to work, the actual unfunded liability figure would be between $250 million and $300 million worse than the $694 million unfunded liability we have already heard about from the minister in his ministerial statement.
The minister says that we will get on top of return to work and get more workers back into the workforce. The 2005‑06 Australian & New Zealand Return to Work Monitor, which was prepared for the heads of workers compensation authorities and handed down in July 2006, is the experience up to 30 June 2006. Amongst other things, it states:
South Australia stood out as having the highest proportion of injured workers still receiving workers' compensation payments and well above the Australian national average.
This is the problem with WorkCover: the return-to-work rate is abysmal; and the minister is ignoring it and doing nothing about it. In fact, he put on a new claims manager and, when it took over all the claims on 1 July this year, it was forbidden to offer redemptions to injured workers. The report also states that South Australia has the lowest return-to-work and durable return-to-work rates, at 78 per cent and 67 per cent respectively, compared with the national average of 87 per cent and 80 per cent. The minister suggests that this problem occurred way back in 1995. At that time, the unfunded liability was about $276 million, if my memory serves me well, and by 2000‑01 it was down to $22 million.
The DEPUTY SPEAKER: Order! The member was given some latitude but took an extra breath. The member's time has expired.
Zinifex says lead production won't be affected by burns accident
Thursday, 08 March, 2007
Content provided to you by AAP.
MELBOURNE, March 8 AAP - Zinifex Ltd says lead production will not be affected at its smelting plant at Port Pirie, north-west of Adelaide, after a worker suffered serious burns.
"As it stands no, lead production isn't affected down there," a Zinifex spokesman said.
The spokesman said that at the moment the company was still investigating what occurred.
"As it stands, production is not affected, but there's a nunmber of preliminary investigations and hopefully with the result of those we'll have a much better indication," he said.
"There's been a discharge of molten material and unfortuantely one of our people has been in the path of that molten material."
At 1348 AEDT Zinifex's shares were down 41 cents or 2.45 per cent at $16.30.
A man suffered burns to as much as 60 per cent of his body in what has been described as an explosion.
The South Australian Ambulance Service said the man was initially admitted to Port Pirie Hospital but was later airlifted to the Royal Adelaide Hospital for treatment in the burns unit.
His condition was considered serious but his injuries were not believed to be life threatening. A second worker was treated at the scene for minor injuries
The Office of Workplace Services (OWS) yesterday won a huge $33,000 in penalties in the Melbourne Magistrates Court from Brochure Flow Pty Ltd, a sales and marketing literature distribution company based in the Melbourne suburb of Burwood.
The underpayments of $5528.65 plus interest for two employees, and resulting penalties, stem from four breaches of the Clerical and Administrative employees (Victoria) Award 1999, and Workplace Relations Act 1996 (the Act).
When handing down the decision, Magistrate Kate Hawkins said the breaches were "serious, blatant and go to the heart of the obligations imposed by the Act." "Failure to pay Award rates of pay, and conditions such as annual leave are not trifling matters," said Magistrate Hawkins. "There is a need to deter other employers from similar disregard for employees' rights."
OWS Director Nicholas Wilson says OWS makes every effort to ensure employers are aware of their obligations and have the opportunity to comply voluntarily, and employers who persist in doing the wrong thing risk high penalties.
"There is no excuse for not paying staff properly," said Mr Wilson. "Every business must be aware of its workplace relations obligations, since OWS audits that uncover underpayments can and do result in Court action.
"Most employers make every effort to do the right thing and meet their obligations. But it's important that the employers who intentionally flout the workplace law understand they will be caught and penalised.
"The central role of the Office of Workplace Services is to ensure that the rights and obligations of workers and employers under the Act are protected, understood and enforced", said Mr Wilson.
Fed: Asbestos diseases highest in Australia: study
Wednesday, 14 March, 2007
Content provided to you by AAP.
By Tamara McLean, National Medical Writer
SYDNEY, March 14 AAP - Australia has one of the highest rates of asbestos-related disease in the world, according to a new report.
The international analysis, published in the Lancet journal, found a clear link between historic asbestos use and recent asbestos-related disease deaths.
The Japanese researchers analysed the amount of asbestos consumption per head of population in 33 countries during the 1960s, the decade when the product rose in popularity.
They compared consumption with rates of related lung and chest diseases between 2000 to 2004, and gave Australia one of the highest placings worldwide.
The team said their results foreshadowed a "global epidemic" of asbestos-related disease which was a cause for "widespread concern".
"This ecological study reveals clear and plausible positive relations between amounts of historical asbestos consumption and deaths from diseases associated with asbestos," they wrote in the journal.
"Our results lend support to the notion that all countries should move towards eliminating the use of asbestos."
Asbestos, and building products containing the fibres, were banned Australia-wide in 2003, but every year hundreds still die from conditions sparked by contact with the product decades ago.
The illnesses, including asbestosis, lung cancer, pleural disorders and the lethal cancer mesothelioma, have been the subject of a large-scale compensation deal involving the building company James Hardie.
Asbestos researcher Alison Reid, from the University of Western Australia, said the number of Australians dying from the disease would not peak for another decade.
"After that the rate should start to drop off but it will take us a while. Australia is just riddled with it," Ms Reid said. "We took it up so enthusiastically, importing it, mining it, using it everywhere in everything."
Treatment for the disease is very limited, and it is universally fatal, with most patients living just nine months between diagnosis and death.
Some doctors have had limited success with chemotherapy and radical surgery, but Ms Reid said it was only palliative care, not a cure.
She said that despite the study's alarming results, there was little point in screening for the disease.
"Even if we find people who have it, we have virtually no treatment to offer them," Ms Reid said. "You'd just be really frightening people."
By Karen Davis
SYDNEY, March 13 AAP - Asbestos campaigner Bernie Banton has taken up a new fight - against the NSW government's personal injury laws.
Fresh from a successful six-year battle with building products company James Hardie over compensation for asbestos victims, Mr Banton today announced he's joining a campaign calling for fair compensation for people injured in accidents.
The campaign, A Fair Go for Injured People, was launched in September by four peak legal bodies in response to sweeping government changes to NSW personal injury legislation.
Under the changes, people injured in civil liability cases, motor vehicle accidents or in the workplace must meet a certain threshold of bodily impairment before they can be awarded compensation for pain and suffering.
Mr Banton labelled the threshold ridiculous and said too many people were missing out on fair compensation.
"I see this is a repeat of the James Hardie issues, people being denied their right to compensation," he told reporters in Sydney. "We need to get it on the agenda and get commitment from government and alternative governments that they are going to attend to this issue because it needs to be attended to now, not in the future.
"People are missing out on what is rightfully theirs."
Mr Banton said he would use similar tactics in this campaign to those he used against James Hardie.
"We've just got to keep at them. The only way to win these wars is to keep at them and not let the issue die," he said. "It's so important for people's financial future that the money is there and available to them and we've got to get people over this ridiculous threshold ... I believe that all that is necessary is a stroke of the pen.
"It's this threshold that's got to be adjusted so everybody gets a fair go, all we're asking for a fair go."
Campaign spokesman and NSW Bar Association president Michael Slattery QC said 95 per cent of people were unable to access proper compensation.
As an example, Mr Slattery said green slip insurers had taken in $10 billion in premiums since 1999 and paid out just $2.7 billion in benefits to the injured. "It's a very important campaign and having someone like Bernie Banton on board and assisting with it will give it a great boost and hopefully it will get real attention from the NSW government and the opposition," he said. "Thousands of workers are missing out ... I think Bernie's going to make a difference." The campaign is being driven by the Law Society of NSW, the NSW Bar Association, the Law Council of Australia and the Australian Lawyers Alliance.
WA: State Government stresses importance of safe workplaces and practices
WA: State Government stresses importance of safe workplaces and practices
Thursday, 15 March, 2007
Sourced by CCH Political Alert
The State Government has stressed its commitment to safe workplaces and practices in the light of Cyclone George.
Employment Protection Minister Michelle Roberts said a number of investigations were already under way and they should be allowed to run their course without interference.
"Worksafe, Police and the Coroner are all conducting inquiries into Cyclone George," Mrs Roberts said.
"We should reserve any judgement until these inquiries are complete."
The Minister said a broader inquiry would only be considered if current investigations pointed to more widespread problems in the industry.
"The current inquiries are likely to result in recommendations that the State Government and industry will need to act upon," she said.
March 17, 2007 12:00am
Article from: The Advertiser
UNION support for the Labor Party during the state election a year ago is being handsomely rewarded with lucrative financial deals, the State Opposition says.
Liberals leader Iain Evans said yesterday evidence for his claims was found in four recent key decisions by the Government which clearly favoured unions - a guarantee of no cuts to WorkCover benefits, $3 million in grants for Occupational Health and Safety training, no shopping hours deregulation and permitting unions access to any workplace.
"The decisions . . . specifically advantage the same unions that financially support the Labor Party," Mr Evans said. He described Government moves this week to give union representatives the right to enter workplaces to talk about health and safety as "the crowning glory" of the Government's pay off to unions.
"When combined with the $3 million in grants for OHS training, Labor's unions are cashed up and provided with legally enforceable entry to any workplace in South Australia in a federal election year - that's a pretty good return on investment."
However, Industrial Relations Minister Michael Wright said the Government made decisions in the best interests of everyone.
"The Government will continue to work hard to have the best workers' compensation system," he said.
"Additional training in occupational health and safety means safer workplaces.
"And the Government believes its current shop trading laws strike the right balance between small retailers, large retailers and consumers."
The Mailhme Union Of Austraha NationaA Office
P. Crumhn
National Secretary M. Doleman
A. Newyn
J. Tannock
Deputy National Secretary Assistant National Secretaries
Ref: S/05/299
Media Release 1 9/3/07
r’ death on the wharves sparks union anger
MUA demands immediate government action
The second workplace death on the Australian waterfront this year - the fourth in four years - has angered waterside workers and sparked a further round of union demands for urgent government action.
Waterside worker Bobby Cumberlidge, 52, was crushed to death by a 24 tonne steel coil in
Westernport on Friday afternoon, March 16. His death comes only weeks after that of
Melbourne waterside worker Peter Ross at Appleton Dock on January 19.
Union frustrations have been building over the lack of government response to the high level of fatalities in an industry where workers labour in ‘floating factories’ that do not always conform to Australian OH&S standards. This is despite the union campaigning for a national safety code for more than 18 months.
In his letter to the ministers for workplace relations and transport Joe Hockey and Mark Vaile, Mr Crumlin called for urgent intervention:
“The MUA will never accept anything other than a workplace where safety is an essential prerequisite to every other activity that takes place there,” he said. “We have repeatedly asked for your assistance in establishing proper OH&S standards that refect the nature of the industry, particularly the interface with international shipping and the quite unique and specific risks involved for stevedoring workers.”
The union has repeatedly called for both state and federal governments to commit to a national standard that specifically identifies those risks through both national legislation and mirror state legislation.
Both major stevedoring employers have fully embraced and committed to a process.
The union is now urging governments to immediately commit to national forum of state and federal OH&S jurisdictions together with the relevant employer, shipowner and union stakeholders in the industry to urgently to develop a legislative mechanism protecting workers employed in this industrial and economically critical area.
“It is essential we have a government response to report back to our membership before the end of this week,” said Mr Crumlin. “Such a high death and injury rate cannot be further countenanced by the industry and its workers whose jobs increasingly come at the cost of their lives and their families.”
He warned said it was of critical importance that governments do not underestimate the union’s determination to have the matter progressed immediately.
Mr Crumlin has also taken the campaign to the global forum where he is chairing the dockers’ section meeting of the International Transport Workers’ Federation meeting in Sorrento, Italy this week. The matter is first on the meeting’s agenda tonight (Australian time).
CONTACTS: MUA National Secretary Paddy Crumlin (in Italy) 0418 379 660
Assistant National Secretary Mick Doleman (in Sydney) 0418 391 528
Kevin Bracken, Victoria Branch 0400 077 563
Warren Smith, Sydney Branch 0400 368 945
Chris Cain, WA Branch 0407 850 084
Mick Carr, SQId Branch 0419 641 463
Jamie Newlyn, SA Branch 0419 517 487
Mick Wickham, Tasmania Branch 0418 125 141
Jim Boyle, NNSW 0418 271 923
Mark Armstrong, SNSW 0419 693 346
Andrew Burford, NT 0409 714 150
Laurie Horgan, NQId, 0409 050 232
Lessons from Gretley: Mindful leadership and the law
Lessons from Gretley: Mindful leadership and the law
Available March 2007.
Following on from the highly respected Lessons from Longford comes Lessons from Gretley, exploring the 1996 Gretley Mine disaster in NSW and its OHS implications.
Written by premier OHS author Professor Andrew Hopkins, the book is provoked by current attempts to hold directors and managers responsible for workplace accidents.
Lessons from Gretley describes the 2004/05 conviction and fining of two mine managers in NSW following the mine disaster at Gretley near Newcastle in 1996 and discusses whether the law was unfair to these managers. The book also examines the impact of the Gretley prosecution on the industry, using interviews with a small sample of mine managers. Hopkins then proposes the controversial view that effective OHS law must hold the top corporate leaders responsible when something goes seriously wrong, regardless of whether they were personally at fault.
Purchase Lessons from Gretley: Mindful leadership and the law Promotion Code (optional)
Based around a specific case study so real-life situations are discussed
Written with multiple audiences in mind¿regulatory policy setters and organisational leaders
Discusses what kinds of legal/regulatory strategies can be used to focus the minds of leaders on safety
Covers what organisational leaders can they do to maximise the chances of safe operation
Contents
Introduction
The demand for prosecution
The first failure - reliance on faulty plans
The second failure ¿ dismissing the warnings
The campaign for law reform
Industrial manslaughter
Holding corporate leaders responsible
Organisational mindfulness
Mindful leadership
The lessons
An empirical study of the effects of the Gretley prosecution
Appendix
References
Product Includes
One print book
Authors/Consultants
Professor Andrew Hopkins is a sociologist at the Australian National University and has published widely in the area of occupational health and safety. He is author of CCH¿s Safety, Culture and Risk and Lessons from Longford: The Esso Gas Plant Explosion.
I found this article from The Age, sorry it is long but it is interesting reading.
At least 2000 Australians died from work-related injuries or illnesses last year. But officially, only 27 died in Victoria. Gary Tippet investigates.
The Robert Sergi Bridge is a sweeping but otherwise unremarkable overpass where the Princes Freeway curves into the Geelong suburb of Corio. To most of the thousands of drivers who cross it each day it represents little more than another taken-for-granted chunk of transport engineering.
Yet its nameplate and a memorial plaque nearby tell a tragic story of sudden death and one family's abiding loss.
The plaque is dedicated to the loving husband of Jane and father of Mark, Ashleigh and Danielle. But the bridge is also a rare public reminder that - for thousands of Australians like Rob Sergi each year - just working for a living can kill you.
On October 8, 2000, Mr Sergi was a 40-year-old crane company owner helping to build the overpass across the Melbourne to Geelong railway line. Shortly after 7am, the 700-tonne concrete girder on which he and three others were standing collapsed. His workmates were hurt but Mr Sergi suffered a severe head injury and died at the scene.
On Thursday, construction company Leighton Contractors Pty Ltd was ordered to pay a total of $525,000 in the Geelong County Court after pleading guilty to four counts of failing to maintain a safe working environment under the Occupational Health and Safety Act 1985. It was the biggest penalty imposed on a company over workplace death since the 1998 Esso Longford explosion.
Jane Sergi welcomed the verdict. But earlier she had told The Age the accident and its long, painful aftermath had come at considerable cost to her, both emotionally and physically: "I still suffer from a terrible sense of loss. I believe the extremely traumatic and catastrophic way Rob died has added to the shocking impact that his death has had on me and our three children."
The same holds true for those working alongside Mr Sergi that day. Mick Yarker, who suffered multiple fractures to his right arm, leg, ribs and vertebrae, says: "Even the guys that were involved with no physical injuries . . . all have the same problems - nightmares and they get overcautious when they're doing something now. You're always thinking something might go wrong every time you're on a job."
For more than 2000 workers every year something does go fatally wrong on the job - sometimes catastrophically, but more often in ways that are slow, insidious and unseen.
On an official count there were only 27 "workplace deaths" in Victoria last year, and 15 so far this year. According to the latest available figures, in 2001-2002 there were 297 "compensated fatalities as a consequence of workplace activities" out of a national workforce of almost 10 million people. But no one with the remotest understanding of the issue pretends that this is but a proportion - maybe less than a 10th - of the real figure.
The problem lies in both definition and detection. Most people who talk of workplace deaths refer only to so-called "traumatic incidents" - falls, crushings, burns or chemical accidents, crashes and the like - while the national figure above counts only those deaths reported through workers' compensation statistics.
John Bottomley, of the Uniting Church's Urban Ministry Network, says: "The industrial deaths figure is misleading because it largely excludes deaths from industrial diseases . . . things like strokes, industrial cancers and so on." Work-related suicides and many road deaths also fail to register.
The National Occupational Health and Safety Commission estimates that when diseases are included there are more than 2000 work-related deaths in Australia every year.
Worksafe Victoria executive director John Merritt says that extrapolating research being done in the US and Finland could lift the national figure to as many as 4500 annually.
Australian Workers Union national safety representative Yossi Berger goes further, saying the toll is more like 8000 when you consider "all those silent occupational diseases" such as benzene-related leukaemias and chemically related diseases that might take 30 years to kill someone.
As Reverend Bottomley puts it: "Work has not only the potential for progress and economic security, it also has the potential to kill people."
Yet the problem seems to have escaped public notice, to the dismay of Jerry Ellis, former BHP boss and now chairman of the Occupational Health and Safety Commission, who points out that more people suffer work-related deaths than die on the roads.
Last month he wrote that one in every 20 workers suffers a work-related disease or injury each year; someone is injured seriously enough to lodge a workers' compensation claim every 2.4 minutes; young workers are extra vulnerable, with 50 suffering such injuries each day and five of those resulting in permanent incapacity. This all costs the Australian economy more than $30 billion a year.
"In any other field, this level of death and injury would not be tolerated," he says.
No one dies from accidents at work. John Merrett of WorkSafe is adamant on that point: the ways people die at work are predictable and preventable.
"The things that kill and seriously hurt people at work are the same sorts of things we've been seeing for decades," he says. And they are: workers falling off or being struck by something moving; something falling onto them or them falling into something; electrocution and burns.
More than 90 per cent of those killed are men and about three-quarters of them are production and transport workers, labourers or tradesmen.
"And we know quite easily how to fix it . . . you have fall protection, or guards to stop things falling on you . . . there's no great mystery about it," Mr Merrett says.
But in the majority of cases, workers do not die at work, they die from work. In a study released earlier this month, occupational physician Associate Professor Malcolm Sim said only a few cancers, lung and skin diseases, stress and other illnesses were being linked to work because of the timelag between exposure and outcome and because there may be a number of possible causes.
While mesothelioma was widely recognised as increasing in rate, it was easily identified because it had one cause, exposure to asbestos, he said.
"But there are other cancers that can be related to work practices, like respiratory tract cancers, bladder cancers, leukaemia and so on, which are not as easy to tease out because they have multiple causes."
Judy Antonello understands workplace death - and even more bitterly understands the confusion over the definition. Her 18-year-old son Rien, a courier "truck jockey", was killed when his van crashed in September 2002. On the statistical register, Rien is not classed as a workplace death but as a road toll victim.
"Every workplace safety ad I've ever seen on TV is based around a factory setting or someone falling on a building site," she says. "People simply won't perceive that that truck was my son's workplace."
Peter Cameron, of the Vehicle Safety Forum, says that of the 3.5 million cars and trucks in Victoria, more than 500,000 are registered as commercial vehicles. But that underestimates the number regularly used for work.
He estimates the number of work vehicles involved in serious road trauma would be proportionate to the number on the road - or higher given the kilometres driven.
Under Victorian law, commercial vehicles are recognised "workplaces" and as such have the same safety and maintenance requirements as a factory floor or building site. But, says Mr Cameron, the regulations are rarely enforced. "WorkSafe doesn't look at the sales rep's car. It only looks at the forklifts that operate in the sales rep's factory or warehouse," he says.
The forum, a group of automotive industry specialists, is lobbying the State Government for annual roadworthiness checks on commercial vehicles.
Another hidden cause of work death is suicide. A 2002 study by the Urban Ministry Network examined coronial records and found that work was a significant but unacknowledged contributor in many suicides.
Significant work-related factors were work stress, fear of retrenchment, arguments with employers or colleagues, performance pressure, long hours and lack of job satisfaction. Bullying, violence and lack of supervision were also cited. In almost a third of the suicides a work injury (mainly back injuries) or work-related mental illness was linked to the death.
Bette Phillips counsels grieving relatives through the Uniting Church's Work-Related Group Support. She believes society takes work-related stress too lightly and that sufferers' colleagues often miss the signs.
US studies estimate that mental illnesses affect up to 20 per cent of the community each year and are the biggest cause of lost productivity.
Reverend Bottomley, one of the authors of the suicide study, said many people were working 60 to 80 hours a week. "When people go to work and that work becomes their whole life, that life is very much at risk," he says.
But National Occupational Health and Safety Commission chief executive Robin Stewart-Crompton says Australia is not "in crisis on workplace health".
International Labour Organisation rates Australia as the seventh-best performer in workplace safety, he says.
"But in relative terms, when you look at all the advantages we have here - with climate, the level of development, our education, the question to be asked is why aren't we number one? When you look at the countries outperforming us . . . what they have is a history of consistently raising national awareness of the need for safety, not only in the working community but the community at large," he says.
But OHS authorities can claim significant successes. Workers' compensation statistics show a 16 per cent fall in claims between 1997 and 2002 and a 10 per cent drop in compensable fatalities between 2001 and 2002. WorkCover has introduced a "constructive compliance strategy", sending inspectors to targeted industries and sectors with high injury rates, and has doubled the number of prosecutions in the past three years.
But alarmingly, of the 15 deaths so far this year, all but two have been in regional areas and seven have been on farms.
FarmSafe Alliance figures show that annual adult farm fatalities from traumatic incidents have risen markedly since 1985 and have averaged 12 a year for the past four years. Of the seven farmers who have died so far this year, all but one was aged over 55.
FarmSafe's David Phillips suggests one reason for this is that as younger men head for the city, the average age of farmers is rising, making them physically less capable of coping and managing risks. Also, financial pressures, particularly due to drought, mean many farmers are using older, less reliable machinery.
Suicide was claiming an increasing number of men of the land, he said. "Farmers' suicide rate between 1989 and 1992 was something like 60 per cent higher than the standardised male rates in the same age group . . . and things have been a lot worse since then."
The Victorian Government is considering recommendations for tougher workplace action contained in the first review of health and safety laws in 20 years.
The review report by Chris Maxwell, QC, would see union safety officers empowered to enter non-union workplaces and to shut down dangerous premises; urges tougher penalties for workplace breaches, a code of conduct for company officers and jail for serious first-time offenders - though it baulks at recommending a new offence of industrial homicide.
Some suggest companies are now quicker to accept responsibility for workplace death and injury, as exemplified by Leighton's decision to plead guilty in the Sergi case. Others say some companies only plead guilty to avoid the "collateral damage" of media exposure.
But Reverend Bottomley says research with employers shows they are "typically devastated" by workplace deaths. As well as its shattering effects on victims' families, each death resonated through their workplaces, with family stress on employers and workers, sometimes leading to violence and divorce, resignations and absenteeism.
He says the issue of safety falls well behind what he calls "the whole economic progress myth" tied to our culture of working hard to get ahead.
"Happiness and wellbeing are not simply measured by how much you take home in the pay packet," he says.
"I think as a culture we haven't said to employers, managers - or workers - that the most important thing is that people come home each day from their work."
Workers' compensation (colloquially known as workers' comp in North American English or compo in Australian English) is a form of insurance that provides compensation for employees who are injured in the course of employment. While schemes differ between jurisdictions, provision can be made for weekly payments in place of wages (functioning in this case as a form of disability insurance), compensation for economic loss (past and future), reimbursement or payment of medical and like expenses (functioning in this case as a form of health insurance), general damages for pain and suffering, and benefits payable to the dependents of workers killed during employment (functioning in this case as a form of life insurance). Cash benefits are established by state formulas with maximum benefit level. The benefits are administered on a state level, primarily by the state department of labor.
These laws are usually a feature of highly developed industrial societies, implemented after long and hard fought struggles by trade unions. Supporters of such schemes believe they improve working conditions and provide an economic safety net for employees. Conversely, these schemes are often criticised for removing or restricting workers' common law rights in order to reduce governments' or insurance companies' financial liability.
Employees' compensation laws were first enacted in Europe and Oceania, with the United States following shortly thereafter. Workers' compensation programs were a key component of the labor structure of the former Soviet Union and similar societies.
Compensation prior to statutory law
'Prior to statutory law, employees who were injured on the job were only able to pursue their employer through civil or torts law.' In some countries like the United Kingdom this was difficult due to the legal view of employment as a master-servant relationship. Proof of employer malice or negligence was usually required, but difficult for an employee to attain. Although employers' liability was unlimited, courts usually awarded in favour of the employer, and paid little attention to the full losses experienced by workers: medical costs, lost wages, and damages for loss of future earning capacity.
Statutory compensation law
Statutory compensation law provides a number of advantages to both employees and employers. A schedule is drawn out to stipulate the amounts and forms of compensation an employee is entitled to if he/she has sustained given kinds of injuries. Employers can buy insurance against such occurrences. However, the specific form of the statutory compensation scheme may provide detriments. Statutory schemes often award a set amount based on the types of injury. These payments are based on the ability of the worker to find employment in a partial capacity: a worker who has lost an arm can still find work as a proportion of a fully-able person. This does not account for the difficulty in finding work suiting disability. When employers are required to put injured staff on "light-duties" the employer may simply state that no light duty work exists, and sack the worker as unable to fulfill specified duties. When new forms of workplace injury are discovered, for instance: stress repetitive strain injury silicosis; the law often lags behind actual injury and offers no suitable compensation, forcing the employer and employee back to the courts (although in common-law jurisdictions these are usually one-off instances). Finally, caps on the value of disabilities may not reflect the total cost of providing for a disabled worker. The government may legislate the value of total spinal incapacity at far below the amount required to keep a worker in reasonable living for the remainder of their life.
A related issue is that the same physical loss can have a markedly different impact on the earning capacity of individuals in different professions. For instance, the loss of a finger could have a moderate impact on a banker's ability to do his or her job, but the same injury would totally ruin a pianist.
Statutory compensation in Australia
As Australia experienced a relatively influential labour movement in the late 19th and early 20th century, statutory compensation was implemented very early in Australia.
Statutory compensation in Canada
Workers' compensation was Canada's first social program to be introduced as it was favoured by both workers' groups and employers hoping to avoid lawsuits. The system arose after an inquiry by Ontario Chief Justice William Meredith who outlined a system that workers should be compensated for workplace injuries, but that they must give up their right to sue their employers. It was introduced in the various provinces at different dates Ontario was first in 1915, Manitoba in 1916, British Columbia in 1917. It remains a provincial responsibility and thus the exact rules vary from province to province. In some provinces, such as Ontario's Workplace Safety and Insurance Board, the programme also had a preventative role ensuring workplace safety. In British Columbia, the occupational health and safety mandate is legislated. In most provinces it remains solely concerned with insurance. It is paid by employers based on their payroll, industry sector and history of injuries (or lack thereof) in their workplace, sometimes known as "injury experience".
Statutory compensation in the United States
Workers' compensation laws were enacted to make litigation less costly for both sides and to eliminate the need for injured workers to prove their injuries were the employer's "fault". The first state law was passed in Maryland in 1902, and the first law covering federal employees was passed in 1906. By 1949, all states had enacted some kind of workers' compensation regime.
This system was originally known as "workman's compensation." Today, most jurisdictions have adopted the term "workers' compensation" as a gender-neutral alternative.
In the United States most employees who are injured on the job have an absolute right to medical care for that injury, and in many cases monetary payments to compensate for resulting temporary or permanent disabilities.
Most employers are required to carry workers' compensation insurance, and in most states heavy financial penalties may be imposed on an employer that does not. In many states there are public uninsured employer funds to pay benefits to workers employed by companies who illegally fail to purchase insurance. Insurance policies are available to employers through commercial insurance companies: if the employer is deemed an excessive risk to insure at market rates, it can obtain coverage through an assigned-risk program.
In the vast majority of states, workers' compensation is solely provided by private insurance companies. 12 states operate a state fund (which serves as a model to private insurers and insures state employees), and a handful have state-owned monopolies. To keep the state funds from crowding out private insurers, they are generally required to act as assigned-risk programs or insurers of last resort, and they can only write workers' compensation policies. In contrast, private insurers can turn away the worst risks and can write comprehensive insurance packages covering general liability, natural disasters, and so on. The largest state fund is California's State Compensation Insurance Fund. The federal government pays its workers' compensation obligations for its own employees through regular appropriations.
It is illegal in some states (although not in others) for an employer to terminate an employee for reporting a workplace injury or for filing a workers' compensation claim. Most states also prohibit refusing employment for having previously filed a workers' compensation claim. However, employers can consult commercial databases of claims data and it would seem nearly impossible to prove that an employer discriminated against a job applicant because of his or her claims history. To abate discrimination of this type, some states have created a "subsequent injury trust fund" which will reimburse insurers for benefits paid to workers who suffer aggravation or recurrence of a compensable injury. It is also suggested that laws should be made to prohibit inclusion of claims history in databases or to make it anonymous. (See privacy laws.)
It is also illegal to falsely claim workers' compensation benefits. Some employers hire private investigators to videotape claimants surreptitiously; some of these sub rosa videos have shown employees engaging in sports or other strenuous physical activity despite a having claimed a disability or injury. TV shows have recently been made using these videos. However, this evidence may be ruled inadmissible in law courts if it has been taken unlawfully.
Some employers vigorously contest employee claims for workers' compensation payments. In any contested case, or in any case involving serious injury, a lawyer with specific experience in handling workers' compensation claims on behalf of injured workers should be consulted. Laws in many states limit a claimant's legal expenses to a certain fraction of an award, payable only if the recovery is successful. In some states this fee can be as high as 40% or or as little as 11% the monetary award, if any is recovered. If no award is recovered, the attorney will be paid nothing and loses the time and money he or she put into the case, thereby having essentially worked for free.
In the vast majority of states, original jurisdiction over workers' compensation disputes has been transferred by statute from the trial courts to special administrative agencies. Within such agencies, disputes are usually handled informally by administrative law judges. Appeals may be taken to an appeals board and from there into the state court system. However, such appeals are difficult and are regarded skeptically by most state appellate courts, because the point of workers' compensation was to reduce litigation. A few states still allow the employee to initiate a lawsuit in a trial court against the employer.
Alternate forms of statutory compensation in the United States
Employees of common carriers by rail have a statutory remedy under the Federal Employers' Liability Act, 45 U.S.C. sec. 51, which provides that a carrier "shall be liable" to an employee who is injured by the negligence of the employer. To enforce his compensation rights, the employee may file suit in United States district court or in a state court. The FELA remedy is based on tort principles of ordinary negligence and differs significantly from most state workers' compensation benefit schedules.
Seafarers employed on United States vessels who are injured because of the owner's or the operator's negligence can sue their employers under the Jones Act, 46 U.S.C. App. 688., essentially a remedy very similar to the FELA one.
Opposition to statutory compensation in the United States
Opponents argue that workers' compensation laws may hurt the U.S. workers they were designed to help. Large employers may have an incentive to move segments of their business -- and their jobs -- to areas where workers' compensation benefits (and other employee protections) are less generous or are harder to obtain. This is because the United States lacks a unified and national set of employee entitlements covering minimum wage, wage and hour, or collective bargaining rights in addition to compensation. labor unions describe this system as a race to the bottom, as state legislatures cut employee entitlements to attract capital. Moreover, applying laws to citizens (or organisations) abroad, is an exception rather than the rule under common law.
United States employers can also move some operations to other countries where employee entitlements are much lower than in the U.S., and where there may be no workers' compensation or other legal remedies at all for workers who are injured or who are exposed to hazardous substances while on the job. Such countries may also have weaker or no legal protections available for employees in areas such as job discrimination, social security, or the right to organize or to join a trade union.
Some small business owners complain that the cost of workers’ compensation, which they pay in the form of insurance premiums, places a heavy burden on them.
Economists who favor the distributism system of economics cite workers' compensation as an example of how far the modern capitalist economic system approaches what they call the "servile state" or "slavery worker" system. They say that in past times when ownership of the means of production were more widely distributed, it would not be natural to hold an employer responsible for a worker's injury, since the worker was freely choosing to work for that employer. Distributists assert that in modern times, with the vast majority of people dispossessed of the means of production, requiring employers to have workers compensation shows how much workers really are dependent on being employed and are essentially forced to work for someone else to survive. Some distributists who feel that capitalism is heading unstoppably in the direction of a slavery system, feel that this will come about by workers exchanging their personal freedom for economic benefits like workers' compensation.
Merge from Workers Compensation insurance
Workers Compensation insurance is a system to provide medical care and compensation to injured workers on a no-fault basis. In the United States, this system is largely administered through the use of mandatory insurance coverage imposed upon employers. A few states maintain so-called "monopoly" systems administered directly by state government, and some states operate state funds that compete with private insurance. The majority of U.S. jurisdictions operate by mandating that employers purchase insurance that provides the statutory benefits to workers.
History
Workers' Compensation in the U.S. began in 1911 during the Progressive Era when Wisconsin passed the first statutory system. Other U.S. jurisdictions followed suit. In general, statutory Workers' Compensation systems strike a compromise, guaranteeing workers medical care and payment for lost time on a no-fault basis. Prior to the enactment of Workers' Compensation laws, injured workers had to file suit against employers, and such legal actions had significant drawbacks for workers. At the same time, a successful suit could impose very large and unpredictable costs on an employer. Statutory Workers' Compensation systems provide for prompt payment of medical, rehabilitation, and lost time costs to injured workers, while placing limits on the cost of the system for employers.
In many states today, Workers' Compensation represents a major cost of business for employers, and there is ongoing political maneuvering by both business and labor groups to shift the compromise balance struck by Workers' Compensation statutes. In general, business groups seek to limit the cost of Workers' Compensation coverage, while labor groups seek to increase benefits paid to workers.
For the commercial insurance market, Workers' Compensation represents a major line of business, although one that is sometimes problematic for the insurance industry. Premiums are large, but many insurers find it difficult to turn a profit in many states, as benefit costs sometimes exceed premiums. This line of insurance is regulated fairly closely by most states, although in recent years many states have allowed insurance companies greater flexibility in pricing this line of coverage. The hope has been that by encouraging price competition among insurers for Workers' Compensation insurance, employers would benefit by being able to obtain lower overall premiums. However, the introduction of competitive pricing for Workers' Compensation insurance has also led to significant swings in cost, as the insurance market moves between 'hard' and 'soft' markets. Employers often benefit from lower premiums in 'soft' insurance markets, only to see their premiums increase exponentially during 'hard' insurance markets.
Injured Workers sometimes complain that insurance companies do not treat them fairly or in compliance with the law, while employers often complain about their costs of insurance being driven up by exaggerated or fraudulent claims. Thus, the field engenders a considerable amount of controversy and litigation. These disputed areas include both claims and premium computations.
The statute of limitations for filing a compensation claim for an accidental injury varies from state to state.
Man dies after pergola fall
Wednesday, 28 March, 2007
Content provided to you by AAP.
MELBOURNE, March 27 AAP - A builder has died in hospital after falling through the roof of a pergola he was constructing in the Victorian city of Bendigo.
The man, aged in his late 50s from the Bendigo suburb of Eaglehawk, fell through the pergola's plastic sheet roof to the ground at a property at nearby Epsom about 1pm (AEST) today.
He later died in hospital.
The man's death takes Victoria's workplace death toll to 11, up from five at the same time last year.
Four of this year's deaths were in the construction industry, WorkSafe executive director John Merritt said.
Of the 41 workplace deaths since the beginning of last year, 11 were in the construction industry, he said.
"Planning a safe work site does not take long or add significant cost," he said.
"Most importantly it protects workers, workmates and families the horror of a tragedy. It protects business.
"In small businesses, the injured person often is the business. They own it; they do the work alongside others."
As the above post says and unfortunately it has to be repeated in this case.
"Happiness and wellbeing are not simply measured by how much you take home in the pay packet,"
"I think as a culture we haven't said to employers, managers - or workers - that the most important thing is that people come home each day from their work."
WorkCover’s unfunded liability has increased to $722.7 million after a loss of $28.6 million for the half-year to 31 December, 2006. The Scheme is 66.1 per cent funded.
WorkCover’s financial result for the July-December 2006 period is primarily due to an increase in the estimate of costs for income maintenance (weekly payments). The Scheme’s funding ratio has increased despite this loss because of an increase in the asset base, largely due to continued, strong investments. WorkCover remains cash flow positive.
The result compares with WorkCover’s funding position at 30 June 2006, when the Scheme was 65 per cent funded, with an unfunded liability of $694 million.
The average levy rate for 2007-08 will remain at 3.0 per cent.
“Earlier today, the Government acknowledged the need for substantial change to the WorkCover Scheme and announced that it intends to commission an independent review of the South Australian workers rehabilitation and compensation legislation,” said WorkCover Board Chair, Bruce Carter.
“The Government’s review is supported by the WorkCover Board and is consistent with the Board’s position, outlined in our annual report released last December. Our position is that legislative change is required to ensure the Scheme is effective in supporting injured workers to recover and return to work at a reasonable cost to employers who fund the Scheme,” said Mr Carter.
“We’ve significantly reformed the management of the Scheme over the past couple of years, largely focusing on improving return to work outcomes through stronger claims management.
“We appointed a single, proven claims agent, Employers Mutual, in January 2006 and we remain confident that their expertise will greatly enhance the performance of the Scheme. However, it has become increasingly clear that we have a different legislative framework here in South Australia compared with those States that have been so effective in improving return to work outcomes,” Mr Carter said.
“Our legislation has remained largely unchanged since the late-1980s. This is in contrast to other schemes’ legislation which have been regularly reviewed and updated in line with changes to the business and social environment, and scheme costs.
“The WorkCover Board, in November 2006, proposed to the Government a range of legislative changes it believes will enable the South Australian Scheme to improve from having the worst return to work outcomes in the nation.
“Achieving balanced and sustainable improvement will require a substantial collaborative effort of the Scheme’s stakeholders and we therefore welcome the Government’s intention to consult with stakeholders during this review,” Mr Carter said.
WorkCover CEO, Julia Davison, said the organisation would continue its urgent focus on better recovery rates and return to work outcomes.
“Our recent improvements combined with this crucial legislative reform will ensure our Scheme continues to support injured workers and delivers better value for employers in this State, by achieving earlier, safe return to work,” Ms Davison said.
Media contact: Danielle Martin, telephone 8233 2381 or 0418 295 324.
Background information on WorkCover
WorkCover is funded by employers to manage a balanced and financially sound system that rehabilitates, compensates and returns injured workers to safe workplaces and the community.
WorkCover began operations in 1987 and is constituted as a statutory authority under the WorkCover Corporation Act 1994 with a Board appointed by the Governor on the recommendation of the responsible Minister (now the Minister for Industrial Relations).
WorkCover is responsible for administering the Workers Rehabilitation and Compensation Act 1986. WorkCover manages South Australia’s Workers Rehabilitation and Compensation Scheme on behalf of about 65,000 employers, providing rehabilitation and compensation support for an estimated 500,000 employees (about 60 per cent of the state’s workforce).
In 2005-06, there were 22,930 claims incurred by workers employed by registered employers and 14,064 claims by workers employed by self-insurers (37,465 in total).
* 79 per cent of WorkCover claimants do not have any lost time from work (less than two weeks)
* 49 per cent of WorkCover claimants return to work within 1 month
* 71 per cent of WorkCover claimants return to work within 3 months
* Out of every 100 injured workers, 82 leave the Scheme within 12 months.
What is the unfunded liability?
In simple terms, the unfunded liability reflects the balance between the assets of WorkCover and the liabilities of WorkCover, including the actuary’s estimate of the claims liability of the Workers Rehabilitation and Compensation Scheme over 40 years.
The actuary uses complex calculations, based on a range of assumptions, to make an estimate of the value in current dollars of all the costs associated with current claims. This is an amount the actuary expects will be paid over the life of those claims, but is not payable today, tomorrow or even this year.
This estimate of the Scheme claims liability is then compared with WorkCover’s assets to arrive at our funding position.
Over time, WorkCover has collected substantial funds to meet the future costs of claims already incurred – currently the Scheme has more than $1.3 billion invested through an investment strategy that has out-performed most similar funds.
April 02, 2007 02:15am
Article from: The Advertiser
INJURED workers would save the financially troubled WorkCover $1 million if they went back to work just one day earlier.
And if five employees on benefits for more than three years returned to their jobs today, they would save another $1 million.
A WorkCover report prepared last November and released by the State Government last week does not specify over what period the savings would be made.
But in a frank assessment of its effectiveness, WorkCover has admitted there is "no direct, financial incentive" to influence injured workers to return to work.
An injured worker on average weekly earnings does not have the weekly benefit of $774 reduced until 12 months after the injury, when it drops to $637.
But WorkCover has revealed it wanted to cut the average weekly benefit by $35 immediately, reducing it to $739 - with a further $137 reduction after 13 weeks to $602.
It also wanted to reduce its generous maximum average weekly earnings figure of $1930 to encourage higher-paid workers to return to work early.
The WorkCover report reveals South Australian has the lowest return-to-work rate in Australia.
The number of injured still receiving workers' compensation benefits six months after their injury is more than double the national average - 46 per cent, compared with 20 per cent.
Twenty-eight per cent of those receiving benefits have been on compensation for more than three years and account for 45 per cent of the scheme's claims liability.
WorkCover's board fears its unfunded claims liability could blow out to $1 billion within months without drastic measures.
Industrial Relations Minister Michael Wright has declined to accept the board's recommendations pending a further public review by workers' compensation experts Alan Clayton and John Walsh, who have until November 30 to report back. Public Service Association general secretary Jan McMahon said yesterday her union would fight to ensure that workers' benefits were not cut.
SA Unions president Nick Thredgold pledged that he would "strive to ensure that any adjustments are not at the expense of injured workers".
Business SA president Rob Chapman criticised Mr Wright for delaying his decision, saying "we will have wasted another year"
Margaret Kelly (The Advertiser 30/4/07) wrote about the Legislative changes proposed by the WorkCover Board.
While Ms Kelly correctly interpreted several of the proposed changes, she failed to put them into their correct context, namely with consideration to the Board's recommendation to retain the provision that denies injured workers the right of redress using common law action.
While WorkCover has effectively trawled the legislation of other jurisdictions for minimum entitlements, it has ignored the fact that these lower entitlements are almost always offset by the right at common law.
There is no doubt WorkCover SA faces enormous challenges but unless it first accepts that the aetiology of the financial liability is found in management decisions and not the injured workers, any legislative change to deny workers their entitlements will only cause pain to those the Legislation was intended to support.
WORKCOVER is in the news again. The Minister for Industrial Relations, Michael Wright, has announced a review of the WorkCover Scheme, This review will consider proposals which, he says, will look to achieve a scheme that is fully funded, that is fair to workers, and enables the earliest possible return to work but also is affordable to business.
The most specific of the three objectives of the review is in respect of the average employer levy rate. The aim is to reduce this from 3 per cent to within a range of 2.25 per cent and 2.75 per cent by July 1, 2009. Neither of the other objectives are as specific, which tells me that that is the one that is most likely to occur. To reduce the average employer levy rate and to fully fund the scheme as soon as possible surely weakens the aim of fair financial support to injured workers.
The media release stated that the structure of the scheme administered by WorkCover had not been reassessed since its inception. However, Mr Wright, as minister, established the Stanley Review after the Labor Government came to power in 2002. The Stanley Review, conducted by the former president of the corkers Compensation Tribunal and the Industrial Court, Judge Brian Stanley, was delivered shortly before Christmas 2002 with the minister proposing to introduce legislative change in 2003.
Before that there were significant changes to the Workers Rehabilitation and Compensation Act. Rights to common law claims were removed in 1992 and there was a major overhaul of dispute resolution in 1996.
We are now having another review. It remains to be seen what legislative changes will be made as a result. The proposals from the WorkCover Corporation, set out on the website of the Department of Premier and Cabinet, seem to have the primary aim of reducing the unfunded liability and reducing costs to employers.
Key to this are two measures. Firstly, the proposal to reduce initial income maintenance payments to injured workers by an immediate step-down in weekly payments to 95 per cent of average weekly earnings with a further step-down at 13 weeks to 75 per cent of average weekly earnings, to bring us more in line with interstate schemes, in particular, Victoria and Queensland. It is also proposed to cap the maximum average weekly earnings payable to $1190, to be indexed.
The other significant proposed change to weekly payments is for work capacity reviews to occur at the end of the second year after injury, to reflect the Victorian scheme. The assumption is that after two years there is no on-going entitlement to income maintenance unless a qualification can be established. The aim is to ensure early return to work, and report provides statistical evidence that the relative performance of South Australia in area of return to work is poor.
It is not all gloom and doom for injured workers. There are some increases proposed in the level of lump sum financial support to the seriously injured. Presumably this will be balanced by the application of a disability threshold similar to the Victorian scheme which must be achieved before any lump sum is payable. There is no proposal to reintroduce common law rights to claim negligence.
Changes are proposed to the dispute resolution system, including medical review panels to make final and binding decisions about medical questions.
I suspect that there will be legislative change as an outcome of this review because the level of the unfunded liability and the desire to reduce the employer levy rate makes the revision of the scheme an imperative. It is perhaps not a coincidence that the review was announced by the Industrial Relations Minister in company with the Treasurer.
Margaret Kelly Is president of the Law Society of South Australia.
Legislative changes proposed by the WorkCover Board.
The Advertiser "Editorial" 2/05/07
Margaret Kelly (The Advertiser 30/4/07) wrote about the Legislative changes proposed by the WorkCover Board.
While Ms Kelly correctly interpreted several of the proposed changes, she failed to put them into their correct context, namely with consideration to the Board's recommendation to retain the provision that denies injured workers the right of redress using common law action.
While WorkCover has effectively trawled the legislation of other jurisdictions for minimum entitlements, it has ignored the fact that these lower entitlements are almost always offset by the right at common law.
There is no doubt WorkCover SA faces enormous challenges but unless it first accepts that the aetiology of the financial liability is found in management decisions and not the injured workers, any legislative change to deny workers their entitlements will only cause pain to those the Legislation was intended to support.
From the Advertiser page 1 Adelaide Tuesday May 15, 2007
Compo revolt by employers
Business demands cost cuts
EXCLUSIVE
PAUL STARICK
CHIEF REPORTER
EMPLOYERS today will launch a mass campaign to pressure the State Government to overhaul WorkCover, warning the nation's worst-performing compensation scheme is damaging the state economy.
In an unprecedented attack on state Labor, Business SA is urging more than 60,000 employers to lobby MPs until the scheme is changed to cut costs and return more injured workers to jobs.
Warning WorkCover's unfunded liability will reach $1 billion within six weeks, employers say a compo "culture... has built up over a long period of time" in South Australia.
Business SA is highly critical of the State Government's decision in March to shelve the WorkCover board's reform plans and, instead, call for another review.
We are calling for bold legislative change to South Australia's workers' compensation scheme, and this campaign will be ongoing until such legislative change is effected.
Business SA chairman Rob Chapman, also BankSA's managing director, today will release a 40-page report branding Work-Cover "the worst-performing of all the states" yet "the most expensive for businesses in the nation".
The report's recommendations include cutting off payments to injured workers after 104 weeks, based on their capacity to work, rather than continuing benefits until age 65.
"We are calling for bold legislative change to South Australia's workers' compensation scheme, and this campaign will be ongoing until such legislative change is effected," Mr Chapman will say at the launch of the report.
"We are calling for a fair compensation and rehabilitation scheme for injured workers, that facilitates a timely return to work and is affordable to the business community."
Other recommended changes include cutting compensation payments after 13 weeks to 75 per cent of pre-injury earnings, and cutting the maximum weekly benefit from 200 per cent to 125 per cent of the state's average weekly earnings.
These reflect the WorkCover board's recommendations to the Government last November, which included cutting weekly payments and capping entitlements to medical expenses.
But the Government is delaying change, with Industrial Relations Minister Michael Wright saying the WorkCover board's proposed "sweeping changes" would have "major social and economic impacts on the state".
"These proposals and others, such as those by Business SA, must be fully assessed and require extensive consultation with interested parties," he told The Advertiser yesterday.
Mr Wright cited support from WorkCover chairman Bruce Carter for the review, which Business SA
says means a new regime could not start before July next year.
Opposition Leader Martin Hamilton-Smith has accused Labor of "a cynical exercise to avoid the truth" by avoiding change during a federal election year.
Mr Hamilton-Smith said Labor's national senior vice-president, Premier Mike Rann, was resisting necessary cuts to worker ben-efits to avoid undermining federal Labor's industrial relations campaign.
He called for Mr Wright to resign immediately or be sacked, saying he had "watched impassively" for the past five years as WorkCover's unfunded liability climbed from $6million to nearly $1billion.
"This is another dis-graceful case of gross mismanagement by a Labor government reminiscent of their State Bank disaster of the 1990s," Mr Hamilton-Smith said. The Business SA report finds that WorkCover has the nation's highest rate of injured workers getting weekly payments (42per cent), AUSTRALIA'S
highest average cost per compensation claim ($12,069).
WORKERS getting the nation's highest number of days of paid compensation (64).
The nation's highest ratio of injured workers who do not
return to work in the first six months of their claim. The nation's highest cost to business, with an average three per cent levy. The Business SA report contains 14 recommendations to overhaul WorkCover, which has not had significant legislative change since 1986, despite radical changes to interstate schemes.
The report says the proposed changes would "allow for a net reduction in the amount of compensation paid" and "create, the necessary incentive for return to work". SA Unions secretary Janet Giles accused business of wanting to "punish workers who are injured by denying them rightful support". "It's bad enough that workers are injured in the first place, without compounding their grief by ripping off their compensation and framing them as the cause of problems instead of the victims," she said.
Business SA chief Peter Vaughan and SA Unions chief Janet Giles are WorkCover board members.
Government must act on WorkCover.
The Advertiser editorial 15/05/2007
EMPLOYERS have run out of patience with the state's outdated workers compensation scheme.
Their dismay at State Government inaction is more than appropriate.
The scheme's unfunded liability is heading for the $1 billion mark - a deeply troubling figure that might be reached within six weeks.
Employers pay the nation's highest levies for a scheme that has Australia's worst results in getting injured workers back to work. WorkCover is broken and needs to be fixed.
Realising this, the WorkCover board last year decided to take action.
A report calling for a radical overhaul was presented to the Government in November. The board's proposed changes included cuts to workers' entitlements, such as reducing weekly income maintenance payments and capping entitlements to medical expenses.
The Government initially tried to bury its head in the sand, then dodged the issue.
Mike Rann...must fear the electoral consequences of changes to WorkCover.
In March, Industrial Relations Minister Michael Wright announced another review of the scheme.
Business SA, which is campaigning for swift and deep reforms, says this means change will not take effect until mid-2008.
It seems Premier Mike Rann doesn't want to offend either the unions or his Labor mates by making necessary changes to WorkCover in a federal election year.
These changes involve cutting entitlements to rein in the scheme's costs - obviously necessary when unfunded liabilities are soaring ever higher.
Yet Mr Rann must fear the electoral consequences of these obvious changes, when federal Labor's flawed industrial relations policy rests on improving worker - and union -entitlements.
WorkCover is an unsustainable scheme damaging the state's economy and tailing injured workers by encouraging a compo culture rather than helping people back into jobs. The necessary changes are obvious and long overdue.
The Government simply lacks the political courage to implement them.
May 25, 2007 02:15am
Article from: The Advertiser
WORKCOVER is being urged to offer more and higher lump-sum payouts to injured workers to cut ballooning claims liability.
An injured worker said he and hundreds of others have been "trapped" on weekly benefits for more than three years because of a "poor policy decision to stop paying reasonable redemptions".
WorkCover figures show the number of injured workers receiving compensation for more than three years has risen from 1126 in 1999 to 2765 in 2006.
The number of payouts removing injured workers from the scheme climbed back to 1435 last year from 496 in 2004, coinciding with WorkCover's decision to make Employers Mutual as its sole claims agent.
WorkCover in March revealed its unfunded liability had increased to $722.7 million, from $694 million in mid-2006, and warned the figure could hit $1 billion by next month. Injured workers, receiving weekly payments for more than three years, represent 28 per cent of all claims but account for 45 per cent of liability.
A claimant said many would readily take "fair and reasonable" lump-sum payouts but they were not on offer.
Opposition industrial relations spokesman Mitch Williams said "reasonable" payouts were the only way WorkCover could get long-term injured workers off its books.
Industrial Relations Minister Michael Wright has appointed independent experts Alan Clayton and John Walsh to conduct a second inquiry and report back by November 30.
A WorkCover spokeswoman said: "We are firmly of the view that WorkCover's financial position will only improve if the scheme achieves better return-to-work rates . . . without the use of redemption where capacity for work exists."
Extract from the Advertiser Thurs May 31 2007.
Silence over Key Workcover query.
There were lots of questions about WorkCover's rapidly deteriorating financial position yesterday but not the one that's been bugging many observers. Industrial Relations Minister Michael Wright appointed a new, high-powered board in 2003 with riding instructions to fix its raft of problems. He installed high-profile liquidator Bruce Carter as chairman to head the rescue mission, along with eight other heavyweights including outspoken Business SA chief executive Peter Vaughan. Mr Carter has more than 25 years experience in corporate recovery and insolvency and has helped save Harris Scarfe, Balfours, the National Wine Centre and the Basketball Association of SA.
Last November, after an exhaustive review, Mr Carter handed the Government the board's remedy for winding back WorkCover's ballooning unfunded liability, high employer levies and improving its low retum-to-work rates.
Mr Wright sat on it until the end of March, when his response was to announce that he had commissioned yet another inquiry to review his own board's recommendations.
The question on everyone's lips in the business world is why didn't Mr Carter resign?
And now, given Business SA's strident criticisms of WorkCover in its pre-Budget submission, can the peak employer body continue to sanction Mr Vaughan staying on as a director?
Posted by Posted by Looking for a new chairman at 1:47 PM, 31/5/2007
SA jockeys covered by workers compensation from today
Friday, 01 June, 2007
Content provided to you by AAP.
ADELAIDE, June 1 AAP - South Australian jockeys are covered by workers compensation laws for the first time.
A law change takes effect from today ensuring jockeys are employed under a contract of service while undertaking horse riding activities, Racing Minister Michael Wright said today.
"Until now, jockeys in this state did not have access to workers compensation," Mr Wright said.
"The changes bring us in line with other states and ensure all jockeys in South Australia have access to compensation in the event of a work related injury."
Mr Wright said jockeys were now covered during training horses, at barrier trials and at race meetings.
Full Day Hansard Transcript (Legislative Assembly, 31 May 2007, Proof)
< H2>Proof
Extract from NSW Legislative Assembly Hansard and Papers Thursday, 31 May 2007 (Proof).
WORKPLACE SAFETY
The Hon. AMANDA FAZIO: My question is addressed to the Minister for Industrial Relations. Will the Minister inform the House about New South Wales efforts to ensure that employers are clear about their workplace safety responsibilities?
The Hon. JOHN DELLA BOSCA: I thank the Hon. Amanda Fazio for her question and acknowledge her ongoing interest in occupational health and safety matters.
The Commonwealth Government's recent legislative changes to allow national companies to bypass state workplace safety laws is a concerning development.
New South Wales has made considerable efforts to resolve the confusion created by the Commonwealth's unhelpful entry into this important area of responsibility. I wrote to the previous Commonwealth industrial relations Minister, Kevin Andrews, in December last year pointing out that a safety gap was emerging created by holes in the Commonwealth legislation. I have received no reply. I wrote to the Minister's successor, Joe Hockey, in January this year and again in February.
New South Wales has outlined simple and commonsense workplace scenarios that expose the inadequacy of the Commonwealth's new laws, including situations where workers are not covered by any safety laws at all. I have yet to receive a satisfactory reply that addresses the practical problems now faced by employers and employees. Commonwealth officials have been advising employers that, first, the Commonwealth will not have exclusive jurisdiction over the entire site of a national self-insurer; second, the Commonwealth has no power either to advise or to enforce in respect of subcontractors and their employees on a site controlled by a national self-insurer; third, subcontractors and their employees remain covered by New South Wales law; and, fourth, in spite of this, New South Wales WorkCover inspectors have no legal power to enter a workplace controlled by a national self-insurer. That means that a significant category of employees will not be covered by any safety compliance laws given the Commonwealth's bloody-minded attitude to this problem.
New South Wales of course rejects this advice and the approach suggested. It would lock out state workplace safety inspectors or require them to gain consent from the controller of the premises. This clearly undermines the requirement of the Council of Australian Governments that there be no reduction in safety standards in the course of harmonisation. The impact of the Commonwealth's advice to employers is to leave some New South Wales workers, particularly subcontractors and their employees, unprotected by any workplace safety laws.
The Commonwealth has so far ignored the problems. I have written again to the Commonwealth Minister requesting that a meeting of the Workplace Relations Ministers Council be held prior to the end of June. It has been eight months since the council last met in September 2006, and there are important workplace issues to be resolved—not the least of which is the resolution of the Australian Safety and Compensation Council that Ministers meet, consider and endorse its business plan for the next financial year. The Commonwealth Minister was quoted in the Australian Financial Review as saying that that is "unnecessary", despite his own council asking Ministers to do so.
The Commonwealth Government consistently refuses to work with the states, preferring an arrogant and bullying approach despite evidence that this does not work. The Workplace Relations Ministers Council has met on more than 70 occasions over the past century, as governments dealt cooperatively with Australia's shared industrial relations powers. The Howard Government, however, cancelled, rescheduled and avoided meetings for a year and a half while it devised in secret its failed WorkChoices laws—laws that are now accepted as being so bad that the Commonwealth refuses even to speak their name. They are a bit like the character out of the Harry Potter books. Now much modified, WorkChoices remains unbalanced, unfair and unacceptable to the majority of Australians. Yet Joe Hockey is pursuing the same blind, arrogant approach to workplace safety, leading to more extremist laws that do not work. I await the Commonwealth's reply to my request for genuine dialogue on this very important issue.
Michael Duffy
September 23, 2006
IN THE workers' compensation scheme for NSW, the rule of law is not operating properly. There is not adequate predictability, consistency or protection from the decisions of government.
Several hundred of the biggest employers are outside the scheme because they insure themselves. Those companies left are being preyed upon by WorkCover, the State Government agency responsible for the scheme. Small businesses have no realistic avenue of appeal against the decisions of WorkCover and the insurance companies, which to many of those affected appear arbitrary.
The biggest issue is how a business decides whether a self-employed worker is an employee or a contractor. This matters because if a worker is defined as an employee, the employer has to pay workers' compensation premiums for them, which can be considerable: for example, in the case of bricklayers it adds 12.5 per cent to the wages bill.
In 2003 the Government changed the definition on which this distinction is based. There was a big increase in the number of audits to check that employers were defining enough workers as employees (and therefore paying insurance premiums for them). Audit numbers rose from 2300 in 2001-02 to 20,000 in 2005-06.
Audits are arranged by the insurance companies that operate the scheme according to policy determined by WorkCover, which says that in 2005-06 audits identified $51 million in underpaid premiums.
They also identified $18 million in overpaid premiums, which was refunded to employers. This is nice, but it's further evidence of the genuine confusion that surrounds the question of definition.
David and June Gibson ran a bricklaying business in Narara on the Central Coast. Before the change they'd had several audits, which had found they were doing the right thing. In 2004 they had an audit which looked at the seven years to 2003 and decided they'd been incorrectly defining some workers as independent contractors rather than employees. All of a sudden, they were up for back payment of extra premiums plus a hefty late payment fee. The bill was $52,000 and they were given 28 days to pay.
The Gibsons appealed to WorkCover. Because they refused to pay the money while the appeal was going on, they were denied a "certificate of currency" from their insurer, which they needed to get work. They have had to close their company.
Distinctions made between employees and contractors can be inconsistent. The Gibsons are aware of cases where the same self-employed men have been defined as employees in the audit of one employer and independent contractors in an audit of another.
WorkCover appears to have too much discretion. The Gibsons say that as their protests mounted, in conversations with WorkCover officials they were offered reduced bills of $20,000 and then $10,000, which they refused to accept. They were given no explanation of why the amount had come down.
WorkCover declined to comment on the case because it is unresolved.
Bob Lalor also lives on the Central Coast, where he runs a road transport business. After being audited, he was hit with a bill for $38,000. He paid $7500 in legal fees to protest to the insurer, and the bill was withdrawn. He says he wasn't told why the decision was reversed, or whether he should now change his payment procedures.
In late 2004 June Gibson printed some flyers advertising an anti-WorkCover protest meeting and handed them out at local pubs where subcontractors socialise. She hired a room for 40 people at Gosford RSL. On the night, lots of people poured in. "I thought they were there for the chook raffle," she says. In the end they had more than 100 people, and went on to form the Small Business Reform Group (www.sbrg.net). It has 300 members, and June says she gets calls from other people seeking advice every day.
Warwick Ryan, a partner at Central Coast Business Lawyers, thinks definitional uncertainty suits WorkCover, as small businesses lack the resources or knowledge to challenge findings. The appeal process is woeful. The first appeal has to be to WorkCover itself. This involves a conflict of interest, because the agency is responsible for the financial health of the state's bloated workers' compensation system. (As an indicator, Ryan points out that workers' compensation premiums in construction are only half as much in Queensland as in NSW.) The next level of appeal is not the relatively cheap Administrative Decisions Tribunal (used, for instance, in appeals involving payroll tax) but the Supreme Court. The outcome is uncertain, and a losing appeal costs more than $100,000.
Gary Brack, the head of the industry association Employers First, says employers are being "denied natural justice due to the high level of unpredictability and uncertainty".
The politics of this are tough. The Government wants to encourage small business, which likes independent contractors, but the unions are keen to define as many workers as possible as employees and therefore potential union members. The Commerce Minister, John Della Bosca, established a panel to come up with a better way of telling the difference between the two types of worker. The panel had representatives from employers and unions, and was unable to agree.
WorkCover is introducing a number of changes that could help the thousands of employers caught in this quagmire, such as an online questionnaire that will provide non-binding advice on how to define individual workers. But for many small businesses in recent years, the system has been a deeply unfair disaster.
ADELAIDE, June 8 AAP - Workplace officials say a spate of industrial accidents in South Australia in recent days should serve as a wake-up call for employers.
Five people were injured in workplace mishaps in the past week, prompting SafeWork SA executive director Michele Patterson to call on all workplaces to increase safety checks.
Among the incidents, a 17-year-old labourer was struck by an excavator in the Barossa Valley, a sub-contractor was seriously injured in a 10-metre fall on an Adelaide demolition site, two men were injured in suburban West Croydon when paint and thinner vapours ignited, and a 19-year-old man caught his hand in a dough machine at a bakery in the Riverland.
Ms Patterson said it was particularly worrying that all the incidents were avoidable.
"Workplace safety isn't a luxury when time allows," she said.
"It must be front and centre when planning any day's work and we remind employers of their legal obligations to ensure the safety of their workers, clients and the general public."
Ms Patterson said the incidents of the past week were still under investigation, so she could not comment on specifics.
But she urged all employers and their staff to revisit and update their safety plans.
"Just because a safety incident hasn't happened at a workplace, that doesn't mean it will never happen," Ms Patterson said.
"Often we have had to prosecute employers with otherwise good safety records because they allowed complacency to dominate their attitude to workplace safety with tragic results."
From The independent Weekly News
Workplace officials say a spate of industrial accidents in South Australia in recent days should serve as a wake-up call for employers. Five people were injured in workplace mishaps in the past week, prompting SafeWork SA executive director Michele Patterson to call on all workplaces to increase safety checks. Among the incidents, a 17-year-old labourer was struck by an excavator in the Barossa Valley, a sub-contractor was seriously injured in a 10-metre fall on a demolition site and a 19-year-old man caught his hand in a dough machine at a bakery. Patterson said all the incidents were avoidable. "Workplace safety isn't a luxury when time allows," she said. "It must be front and centre when planning any day's work and we remind employers of their legal obligations to ensure the safety of their workers, clients and the general public."--AAP
By Jade Bilowol
June 14, 2007 01:04pm
WORKPLACE psychopaths are common in major businesses and are ruining the lives of their colleagues, an expert has warned.
And they are often rewarded for their ruthless behaviour because they appear smart and creative but are really manipulative bullies who steal ideas, according to Sydney-based psychotherapist and author John Clarke.
Dr Clarke, who has penned two books about workplace psychopaths and will speak at the state government-sponsored Queensland Safety Show in Brisbane next week, today said up to three per cent of the Australian population was psychopathic.
"I would say that in every major company there would be at least one," Dr Clarke said.
"Psychopaths are very comfortable in successful corporations because they are actually rewarded for their behaviour.
"In business you are encouraged to make money for the company and if you appear to be doing whatever it takes to make money, you are often promoted.
"They are seen as rising employees who are full of energy and creativity."
But behind the facade, such workers were "ego-centric, grandiose, pathological liars with a lack of conscience, remorse and guilt", Dr Clarke said.
"I think the workplace psychopath is actually more dangerous than the violent criminal psychopath, because the workplace psycho is smart, charismatic, charming and much less likely to get caught," he said.
Dr Clarke said victims were miserable, suffered depression, anxiety and panic attacks and feared going to work.
"Psychopaths isolate their victims through cutting them out of the lines of communication and then destroy them," he said.
"I know of several situations where employees have committed suicide because these people felt there was no other alternative.
"You are at work, you think about it, then you go home and think about it and question if it's something to do with you.
"You think about all the different scenarios until work is all you think about and at this stage it's destroying your life."
Dr Clarke said employees could protect themselves through education, communication or ultimately leaving their workplace.
"If you know what they do, you are less likely to be sucked in and communication in the workplace makes you feel less isolated," he said.
"But you need to evaluate your situation and, if you can't change it, you need to evaluate the costs for your mental health versus finding a new position elsewhere."
Unions attack WorkCover
Article from: The Advertiser
MICHAEL OWEN, POLITICAL REPORTER
June 15, 2007 01:30pm
UNIONS have accused the WorkCover Corporation and Business SA of "mischievously misrepresenting" WorkCover's financial situation to try and cut workers' entitlements.
SA Unions today released a discussion paper it commissioned by UniSA workers' compensation expert Kevin Purse.
Dr Purse this morning criticised the management of the WorkCover Corporation and said an overhaul of the executive and the board was an option the Government should consider.
"The management approach is fundamentally flawed," he told reporters.
"We need to set that right and if that doesn't occur, the prospects of the scheme aren't particularly great."
But he stopped short of attacking Industrial Relations Minister Michael Wright, saying the executive and the board of WorkCover had to shoulder most of the blame for its problems.
"They're the ones charged with the responsibility for the management of the scheme," he said.
"What the Government should be doing is stepping in and saying `you need to return to core business"'.
The discussion paper is a "precursor" to the State Government's WorkCover inquiry, SA Unions president Nick Thredgold said.
"Dr Purse has examined WorkCover without fear or favour and cut through the hysteria and misinformation generated by self-interested parties such as Business SA," he said.
As reported by The Advertiser last month, Business SA is urging more than 60,000 employers to lobby MPs until the scheme is changed to cut costs and return more injured workers to jobs.
Mr Thredgold said among key points of the discussion paper were:
DEBATE about WorkCover's financial situation has been distorted by a simplistic preoccupation with the scheme's unfunded liability.
WORKCOVER'S "excellent" investment performance has been ignored, which means its liabilities have been seriously overstated.
A MORE accurate and statistically robust assessment of performance would reduce the scheme's unfunded liability by $300 million.
Business SA and the State Opposition have been warning WorkCover's unfunded liability will soon reach $1 billion.
They also have been highly critical of the State Government's decision in March to shelve the WorkCover board's reform plans and, instead, call for another review.
'Opposition Leader Martin Hamilton-Smith said he welcomed the discussion paper.
"This is Labor's own people telling them there's something wrong," he said.
"Maybe this time Minister Michael Wright will listen and actually do something.
"The message from unions is clear.
"They believe WorkCover has to get back on track with better management, better direction from the board and better direction from government.
"That's exactly what we have been saying for years. WorkCover is a mess."
Mr Wright said the Government had "every confidence" in the WorkCover management and board.
"The closing date for submissions to the WorkCover review is June 30 and I welcome all contributions," he said.
I turn to the issue of WorkCover. It has been in the news this year, with the apparently ever-increasing liability problem, usually tagged as a blow-out in our media. First, I want to say something about the mechanics. I give credit to Dr Kevin Purse, whose report was released late last week in relation to the WorkCover problem. He points out that the way in which the calculation of liability is generally done in the media is quite misleading. Of course, the unfunded liability refers to the amount WorkCover or its agents might have to pay if every injured worker had to be paid for medical and income expenses and so on through the life of every existing claim. Dr Purse suggests that a better calculation might be the funding ratio: in other words, the value of total assets as a percentage of total estimated liabilities. After all, if you were looking at the health of a public company, you would not just look at its liabilities and say that it is a healthy company, or that it is an unhealthy company. That would be a really stupid approach.
Of course, you would look at the assets as well as the liabilities to get a better idea of the financial health of the company. It is the same with WorkCover. The figures Dr Purse has calculated are as follows: WorkCover was 65 per cent funded in 2005‑06 financial year compared with 63.4 per cent the previous year. That is not a large improvement but, nonetheless, it is an improvement, yet we have all the doomsayers talking about the increasing bottom line of liability, and that in itself is misleading.
The other thing I want to point out is the two critical assumptions that underpin liability estimates, that is, the claims inflation rate and the discount rate. These items are based on very delicate assumptions, and the slightest change to those assumptions (for example, the minor variation to the assumed rate of return on investments) can lead to a very drastic reduction in the outstanding liability figure, potentially by hundreds of millions of dollars. I do not go along with the scare campaign the government, the opposition and the media, not to mention the employers group, have been pursuing and fostering. However, there is a problem, which I think is the result of years of mismanagement and neglect of the core issues of getting workers returned to work or off the system. Not only do the staff and management of WorkCover have some responsibility to bear but, of course, the minister also bears a heavy responsibility, particularly over the last five years of the Labor government—more so because the Stanley report, which was published some five years ago now, showed a way forward for the government, yet that report has been gathering dust.
It seems that the Labor government approach to WorkCover has been very much a hands‑off policy, and that has led us to talk of a crisis. No doubt, the Labor government will come back next year with talk of raising the employer levy and also cutting benefits to injured workers. The payroll reduction this year is not going to win the government a cracker of favour from employer groups when the Labor government comes back next year to talk about increased levies for WorkCover. Dr Purse's report points out a couple of ways of getting WorkCover back on track, namely, that a better approach to redemptions and rehabilitation is the way to go, and I entirely agree. We would not be in the situation we are in now if a better approach had been taken to these issues years ago. There will no doubt be further discussion about WorkCover when the report commissioned by the Labor government comes back after the federal election. Something tells me we are not meant to debate it until after that event.
Meet my new girlfriend
GENEVIEVE MEEGAN, Sunday Mail columnist
June 24, 2007 12:15am
THE relationship may still be in its early stages but that didn't stop Treasurer Kevin Foley publicly unveiling his new girlfriend yesterday.
Hand-in-hand Lisa Holmen, 24, was by her man's side at Port Hughes on Yorke Peninsula where he was hosting "the Shark" Greg Norman and his partner, former tennis great Chris Evert.
The official party was surveying Norman's new squillion-dollar golfing development in the area.
Lisa is the events and marketing officer at the Property Council of Australia.
She has a double degree in international studies and marketing, and met her new pollie boyfriend at an inner-city pub about four weeks ago.
It's known the couple have been out to dinner and to the movies a few times since their first meeting.
It was always going to be a baptism of fire when Foley, who turns 47 in September, appeared with a new girlfriend in the public domain, but add a mega-famous celebrity golfer into the mix, plus his equally famous girlfriend and that's a story.
Lisa was said to be relaxed and calm in the media spotlight yesterday, showing her support for Foley.
Foley admitted having a private life while being such a public figure could be a challenge.
"It's difficult starting a new relationship, let alone in the media glare," he said yesterday. "We're just getting to know each other and we'll see what happens."
How Lisa continues to handle the media frenzy that is Kevin Foley's lovelife remains to be seen.
Corruption: No resources
June 25, 2007 02:15am
THE Police Complaints Authority and State Ombudsman do not have the resources to investigate corruption, it has emerged.
Former Ombudsman Eugene Biganovsky and PCA head Tony Wainwright have confirmed any allegations of official corruption, including against police, have to be investigated by SA Police.
The comments by Mr Wainwright and Mr Biganovsky follow calls by Director of Public Prosecutions Stephen Pallaras, QC, and former Auditor-General Ken MacPherson for an independent anti-corruption commission, similar to those operating interstate.
The State Government repeatedly has ruled out setting up an anti-corruption agency, arguing the Police Complaints Authority and SA Police Anti-Corruption Branch were capable of performing the task.
Mr Biganovsky, who retired last Friday after 22 years investigating complaints against the SA public sector, said his office did not have the capacity to investigate systemic corruption in the public sector or local government.
"We're all limited on what we can do," he said.
"It comes to a question of time, resources and expertise." Mr Wainwright yesterday also told The Advertiser his office did not have the staffing or expertise to investigate serious corruption allegations against police officers.
Its main role was to oversee investigations by police into public complaints against officers, not conduct inquiries.
"We direct investigations (against individual police officers), oversee them and assess their results," he said.
"We do not have an investigative function as such.
"Our main role is to oversee the investigations conducted by police into complaints received by this office."
Mr Biganovsky said he asked Mr Wainwright last year if he could officially oversee the authority's operations but the request was declined on jurisdictional grounds.
"Legally, the Ombudsman has no power to oversee the Police Complaints Authority but oversees other agencies such as the Consumer Affairs Commissioner, Equal Rights Commissioner and Health Complaints Commissioner," he said.
"It is a political question about whether State Parliament wants to modify the legislation to allow the Ombudsman to look at the practices and procedures of the Police Complaints Authority to ensure they are conducted fairly, efficiently and quickly."
Mr Biganvosky said the legislation controlling the Police Complaints Authority - which, by law, must conduct all of its operations in secret - was introduced in the mid-1980s and could be reviewed to "see if it is doing all the things it was intended to do."
Posted by No resources ..no corruption at 11:44 AM, 25/6/2007
Article from: The Advertiser
June 27, 2007 08:45am
THE State Government has ditched plans to make schools pay the one per cent Workcover levy, admitting this morning "we got it wrong".
Premier Mike Rann told a press conference the reform of the workcover system would continue without the need for the levy.
“So no school will have to feel the pain of this Workcover levy; we’ve killed it stone dead. We’ve listened,” Mr Rann said.
“We’re saying we got it wrong, we got it wrong.”
Australian Education Union state president Andrew Gohl told FIVEaa that tomorrow's strike involving up to 600 preschools, primary and secondary schools might be called off as a result of the Government decision.
An act of injustice From the Independent Weekly June 30-July06 2007.
The state government's fight against bikie gangs is tough talk and its walk is a popular
swagger. But are its laws brutal and unfair, as its critics claim? HENDRIK GOUT explains
how you could get caught up in a fight you have no chance of winning.
Lawyers
Catherine Hicks and David Edwardson believe the criminal assets law is flawed
It was a dark and stormy night.
High in the wooly Scottish hills,
with the moon scudding across
clouds, English excise men armed with torches, iron hammers, and bad tempers smashed their way into a crofter's hut. Just as their informer promised, hidden in- a backroom, was the illegal pot-still and a score of bottles of precious uisge beata - the spirit, whisky.
Triumphant agents dragged the screaming crofter away in chains without sympathy or mercy and torched his hut. The government had outlawed home-made whisky-making and was determined to end the centuries-old Scottish tradition by unreasonable force. McTavish's pot-still, along with as many as 400 other illegal stills in a single year, was smashed to smithereens. It was the 1700s, and the law was chaos.
The Law Lords of Westminster didn't use the same words as the Parliament of SA, but in seizing the pot-still the British government did what the South Australian government would do 300 years later. The British used excise men almost as lawless as the crofters themselves - South Australia would use the Criminal Assets Confiscation Act, proclaimed last year.
"$17.7 million in criminal assets frozen," triumphed the headline in Premier Rann's media release on April 22 this year.
The list of assets seized under the Act included houses, the Premier boasted.
And on a dark and stormy night in the Adelaide Hills, without sympathy or mercy, the law closed in to evict a woman from her own house.
Sylvia Kramer doesn't work any more. After a long life in the public service (see box, page 7) she hit retirement age and, living alone, took a redundancy package. She decided that if she lived modestly she could manage on her life-long superannuation.
She went to the occasional Adelaide Symphony Orchestra performance, visited her just-married daughter every week, walked the dog, and tended her garden. Wherein she grew a few dope plants.
Four plants, specifically The police raided that moonless rainy night. She confessed immediately to growing them for herself and friends. She showed the plants to police. She was charged. She pleaded guilty in the magistrates' court. She was convicted, fined, and remonstrated.
That would have been the end of the matter, except for the Criminal Assets Confiscation Act.
In marched the office of the director of public prosecutions, Act in one hand and cudgel in the other. And in the swirl that followed, good laws became bad justice, parliament failed its people, and rhetoric ruled reason.
Attorney-General Mick Atkinson introduced the Criminal Assets Confiscation Act on November 10, 2004, and it came into force last year. The government was showing its chest hairs to bikie gangs and promised to seize their drug profits.
"This legislation undermines the ability of organised crime gangs, such as outlaw bikies, to re-invest dirty money and build empires," Rann said in his April review of the Act's operations.
The Act does many things. It is a brand new law. Under this brand new law, Sylvia Kramer and a thousand other South Australians, maybe more, will become crofters in the 21st century
"On one level the law makes sense," says Adelaide lawyer Catherine Hicks.
"It's perfectly reasonable that people shouldn't profit from crime. Confiscating property, whether cars or houses, which have been acquired through crime is one thing. But this law-the Criminal Assets Confiscation Act - is quite another.
"There is a constitutional argu-ment. It's certainly out of step with laws in other states."
"This woman grew four cannabis plants," says Sophie Downey, another Adelaide lawyer involved in such cases.
"She had no criminal history When the police arrived she admitted the facts. She didn't know the system-she wasn't represented by a lawyer and she didn't exercise her right to silence. She pleaded guilty in the magistrates' court. Now, what would be an appropriate punishment? Under the Act,
she'll lose the house she's saved for her life which she acquired perfectly honestly"
"It's unjust enrichment by state," says an enraged Adelaide David Edward son. "People can do something relatively minor and an asset worth hundreds of thousands of dollars. The Crown is getting windfall of massive proportions. unjust, unfair."
The legislation was supported across the major parties in parliament "The government's clear intention was to crack down on bikes and organised crime and that's perfectly justified," Ms Downey said this week. in both the House of Assembly and in the Legislative Council, Liberal and Labor MPs spoke of "bringing SA into line with other states". Yet the Bill did something very, very different.
"There's a question," Ms Hicks said. "How many MPs actually understood the Bill? It's 111 pages long with 230 clauses."
One of the few MPs uncomfortable with the new law was the member for Mitchell, Kris Hanna. "We are not talking about the rights of criminals, but the rights of innocent people caught up in the police and the criminal justice system," he argued.
"It is unacceptable that people who could not be found guilty in court are subject to the confiscation of their property"
Hanna was talking about a fundamental change to the administration of justice. In criminal cases the judge or jury bases their verdict on a certain standard of proof: beyond reasonable doubt.
In civil cases the standard is lower: on the balance of probability.
Now take the case of 48 year-old Justin Bragg, who since his divorce rented out a room in his Ingle Farm home to a work colleague. The colleague began selling dope from Bragg's house, and he was caught, charged, and convicted. Bragg was also charged but told the court the drugs were his colleague's, not his, and he was I found not guilty.
But the state could still kick Bragg out of his own home - quite legally. Bragg has to pay the mortgage during the sale process while he financially supports his former wife and two children. Why? Because while there was reasonable doubt that Bragg was completely innocent, on the balance of probability he could have been involved.
The house he and his wife had worked for most of their lives, and .which was worth $288,000, was seized by the state because it was an 'instrument' in a crime for which Bragg was never convicted.
"There's a further big difference between here and the commonwealth or other states," Hicks said.
"In Sylvia Kramer's case, the most she stood to profit by was about $30,000. Her equity in her house was close to half a million dollars.
"It is a complete injustice. There is no justice in someone losing $500,000 for a crime which might have profited them by less than a tenth of that amount. For real justice, the penalty should fit the crime."
in the District Court on Victoria Square this week, in an unrelated case, four senior lawyers - two of them QCs - were on their feet before His Honour Judge Sidney Tilmouth. Tilmouth had two or three words to say about the Criminal Assets Confiscation Act, and none of them suggested praise.
As it turns out, once someone has been convicted of using their house as an 'instrument' in a crime, and this could be anything from growing a few dope plants to distilling some uisge beata, the house is forfeited within 15 months. The director of public prosecutions can slap a restraining order over the home. It can't
then be sold by the defendant. Its value can't be used to pay for the accused's own defence.
Judge Tilmouth told his court that the 15-month time frame seemed very short. The lawyers, even the prosecutor, heartily agreed.
"It can take a minimum of 12 months even to get a hearing in the District Court," QC David Edwardson said with exasperation.
"Theoretically we could still be arguing aspects of the case when the 'instrument', the house, has already gone to the state.
"There are other aspects," Hicks emphasised. "This Act has provisions for automatic forfeiture. That means it removes the discretionary ability of the court - that is, the court's discretion to protect its citizens from unfairness, from disproportionate punishment."
Mark Brindal, a Liberal maverick when the law went through parliament, called it at the time 'unjust and immoral'.
"I do not know how this attorney is sitting in this place trying to pass off this hypocritical rubbish as acceptable law to be passed by the parliament of South Australia," Brindall fumed.
Following the hearing in the District Court this week, the DPP's office has given Judge Tilmouth an assurance that it will talk about the effects of this law with the Attorney-General.
But public memory is short. The day after grabbing the headlines on bikies assets crime the government had a new story-of-the day - Rann announced a deal to set up a local campus of Carnegie Mellon American university Within a week, Attorney-General and muiti-cultural affairs minister Atkinson was answering a Dorothy Dixer about the Christmas pageant. To which Atkinson was pleased to reply that the pageant is "argu-ably the largest parade of its kind in the Southern Hemisphere".
The assets law was yesterday's yarn. Posh unis and parades were the new news. So an elderly woman losing her house over four marijuana plants is completely passe, even if it happened last Tuesday.
"It is the spirit and not the form of law that keeps justice alive," once wrote the chief of the US Supreme Court, Earl Warren.
A smouldering crofter's cottage and the spirit of uisge beata in Scotland are not really separated from state seizure and eviction in the Adelaide Hills by 300 years. It's just a form of law. And that's as relevant today, as it will be tomorrow
A Noble Park man was sentenced to a month in jail today for fraudulently obtaining more than $7,200 in workplace injury compensation payments and for falsely declaring that he had not worked during the time in which he received payments.
The Dandenong Magistrates Court heard that in 2004 Richard Gilling injured his lower back while working as a labourer with a scaffolding company. Mr Gilling submitted a WorkCover claim which was accepted.
He was certified as being unfit for any duties and he formally declared that he was not engaging in any form of employment while receiving weekly workplace injury compensation payments.
Some months later, Mr Gilling was seen working as a crowd controller at the Prince of Wales Hotel in St Kilda. A WorkCover investigation found he had worked 59 shifts over a four month period in 2005, while receiving compensation payments.
Mr Gilling pleaded guilty to one count of fraudulently obtaining payments and six counts of providing false information under the Accident Compensation Act 1985.
He was convicted and sentenced to one month’s jail.
These offences breached a suspended sentence previously imposed by the Court for driving while disqualified. As a result, Mr Gilling’s suspended sentence was restored and he was ordered to serve both concurrently.
Victorian WorkCover Authority Executive Director, Len Boehm, said identifying and prosecuting fraud cases helped protect honest workers, employers, and service providers, and maintained the integrity of Victoria’s WorkCover scheme.
“This case is an eye-opening reminder of the consequences to be suffered as a result of dishonesty.
“Most workers are honest, but a case like this undermines community confidence and support in the WorkCover system.”
Speers convicted of WorkCover fraud
November 2, 2006
An Altona Meadows man was convicted and fined, in the Werribee Magistrates Court today, of falsely claiming more than $27,000 in WorkCover payments.
The Court heard 42-year-old Glenn Speers was caught on surveillance while working as a truck driver and claiming workers’ compensation payments.
WorkCover investigations revealed Mr Speers was paid cash in hand, although on some occasions the pay records showed payment as “two slabs bourbon”.
In handing down a $10,000 fine, Magistrate Andrew Capell said welfare support was set-up for those in need and that this sort of fraud brought the system into disrepute.
Magistrate Capell said Mr Speers committed a deliberate and dishonest act that created cynicism about genuine recipients of workers’ compensation, which could have a negative effect on their self-esteem.
In the period he worked and was receiving payments, Mr Speers provided WorkCover with regular medical certificates stating he had no capacity to work. He also declared he had not engaged in any form of employment.
VWA Executive Director, Len Boehm, said identifying and prosecuting fraud cases helped protect honest workers and employers and maintained the integrity of Victoria’s WorkCover scheme.
“Most people who receive benefits are honest, but a case like this gives a bad name to legitimate recipients by undermining their confidence and community support,” Mr Boehm said.
Mr Speers was convicted on 22 counts of fraud and three of providing false and misleading information.
Qld has seen a decline in WorkCover cases going to trial but a plaintiff lawyer has suggested lawyers “call [WorkCover’s] bluff” if they are not satisfied with WorkCover offers. Adam Taylor, Shine Roche McGowan partner, told the Aust Lawyers’ Alliance (ALA) Qld conf on the Gold Coast that “if WorkCover aren’t making adequate offers, take it to trial”. He said lawyers had a big role to play in successful compulsory conf deliberations. “When you are at a conf and are not getting adequate offers you have to ask why. Don’t just say WorkCover are being nasty again. Is the matter not worth that much or have you not prepared the case properly?
One big thing that gets in the way of matters settling is a lack of preparation before you attend the conf. That starts from your notice of claim.” Taylor said proper pleading of events, particulars of negligence and causes of action were far more likely to induce an adequate settlement offer than presenting a case that was improperly prepared. “If you turn up at conf and change the argument you had in the notice of claim, WorkCover aren’t going to like it and you will get an inadequate offer from them. From a plaintiff lawyer’s point of view, you have to give them a reason to settle and that means evidence. You have to get your evidence together, you’ve got to have adequate statements and, if necessary, hand those over.”
Kylie Houghton, WorkCover Qld c/law mgr, agreed proper case preparation was vital in settling claims. “You need to get your evidence to us before a compulsory conf. Once we have your case we can tell you if we can settle or not and what sort of offers we can make.” She said WorkCover Qld was currently settling 85% of matters pre-trial. “We’re moving in a really good direction. Injured workers are being compensated and these matters are being solved without the need for litigation.”
Houghton said WorkCover procedure was that if a case was not resolved during pre-trial proceedings, it went back to a case mgr for review. “We want injured workers paid. The longer claims are on our books, the more we have to pay.” She said disclosing evidence the day of a compulsory conf was “not good enough” and lawyers needed to disclose evidence early.
Injuries prompt Olympic Dam closure
August 17, 2007 05:55pm
BHP BILLITON Ltd has shut-down the smelter at its massive Olympic Dam project in SA following an electrical incident, which injured six workers.
A BHP Billiton spokesperson said the company was not expecting a loss in production but was unsure when smelter operations would re-start.
"There was an incident there yesterday, which was caused by water getting into an electric furnace when a seal broke," a BHP spokesperson told AAP.
"There were about six staff that were treated on the scene with first aid for smoke inhalation and (we) shut down the smelter while assessing the situation."
The smelter produced about 182,500 tonnes of copper cathode and in excess of 3,000 tonnes of uranium oxide in 2006/07.
Olympic Dam is Australia's largest underground mine and is located about 560 kilometres north of Adelaide
Questions about counsel and compromising injured workers cases because of business relationships
Judgment of Mr Hiskey, S.M. 20/11/91
Stanley & Partners v Peter Reynolds.
T/s P.19. Mr Tim Bourne of Stanley & Partners evidently stated, according to Mr Hiskey:
"…..the firm of Solicitors (Stanley & Partners), if they are shown to have competently and properly instructed and briefed counsel cannot be held responsible for even errorsof judgment which their chosen counsel might have made".
The Law Society of South Australia Professional Conduct Rules:
(Incorporating all amendments to June 1990)
9.1 "A practitioner shall use all reasonably available legal means that are consistent with the agreement pursuant to which he is retained to advance a client's interests as the client perceives them".
9.3 "A practitioner shall at all times make a full and frank disclosure to his client of any interest he may have in any transaction in which he is acting for that client and should such interest be adverse to that of his client subject to any instructions which he may receive he should terminate his retainer".
9.4 "A practitioner shall at all times make a full and frank disclosure to his client of any matter or thing which could reasonably be regarded by the client as raising a conflict of interest on the part of the practitioner".
9.6 "A practitioner shall at all times use reasonable endeavours to complete in a competent manner……………any business entrusted to him by a client".
9.7 "A practitioner shall keep a client apprised of all significant developments in any matter entrusted to him by the client…."
11.1 "A practitioner in his capacity as solicitor in his dealings with counsel instructed by him in a matter shall endeavour to perform and discharge all the work properly within the scope of work to be done by an instructing solicitor and shall endeavour to ensure that the work done by counsel is properly confined to the work of counsel".
16.2(g)"Counsel shall not act in any proceedings in which it is likely that he will have a direct or indirect interest (other than as Counsel) in the outcome of the proceedings".
16.2(i)"Counsel shall not give any undertaking to the Court on behalf of his instructing solicitor or his lay client without the express authority of the person concerned".
16.3(b) "In the case of cross-examination going to a matter in issue, it is not improper for counsel to put questions suggesting fraud, misconduct………..if he is satisfied that the matters suggested are part of his client's case and has no reason to believe that they are only put forward for the purpose of impugning the witnesses character".
The Law of Torts - John G. Fleming - 7th Edition
Standard of Care - P. 96
"Negligence is conduct falling below the standard demanded for the protection of others against unreasonable risk of harm".
Skill - P. 99
"Those who undertake work calling for special skills must not only exercise reasonable care but measure up to the standard of proficiency that can be expected from persons of such profession".
Cross on Evidence - David Byrne QC - (Butterworths)
General Issues in Connection with Cross-Examination
9.79 "The conduct of cross-examination has to be carried out with particular care so far as it purports to reflect a client's instructions as to events in issue, because, allowing for the possibilities of human error, a divergence between what a party says in evidence and the questions asked by that party's counsel of the opposing witnesses may be taken into account in evaluating that party's testimony".
It is the writer's contention that legal Counsel did not act in accord with above cited principles, in Supreme Court case 2553 of 1988 - Peter Reynolds v State Government Insurance Commission.
Brief - Stanley & Partners to Greg Holland, Barrister - 19/10/89.
"Notes to Counsel"
P. 2 "The assessment of damages in the matter is likely to prove difficult".
P. 4 "Accompanying the brief is transcript prepared by Reynolds of the tape recordings of conversation (of medical interviews/examinations by Doctors on behalf of SGIC)".
"We believe that this course of action indicates the plaintiff's obsession with the legal process and his illness. We think it is probably fair to say that the real dispute may well be about the cause of that illness rather than the effects of it".
"We see the matter as being somewhat difficult to resolve".
P. 5. "We would like to discuss the matter with you after you have had an opportunity to read the brief. We look forward to hearing from you".
----------------------
"Accompanying" "Transcript of Taped Medical Examinations of Plaintiff and Plaintiff's Instructions about Examinations".
Index of Contents
1 "Medical report of Dr Lower" - 31/7/86
Not medical report but 1 page of personal hand-written review of Dr Lower's report.
2,3,4,5. Almost 50 pages of personal hand-written transcripts/criticisms of Dr Eriksen's medical reports for SGIC, dated 9/12/86, 22/3/89, highlighting errors/bias/deception, including inserted copies of those reports which also highlight errors/bias/deception on the part of Dr Eriksen. eg; Dr Eriksen claimed I removed my trousers "without overt disability".
Tape recordings/transcripts, evidence of myself and of my wife support my allegations against Dr Eriksen. Specifically re: the above eg; I never removed my trousers. Despite these instructions/tactical advantages, Simon Langsford of Stanley & Partners and Greg Holland elected not to call Dr Eriksen to dispute or discredit his medical reports which were submitted into evidence, nor to reinforce my credibility.
6 "Medical report of Dr Scanlon" - 31/3/86
Not medical report but 11 pages of personal hand-written review/criticisms of Dr Scanlon's report, highlighting errors/bias/deception.
8 "Medical report of Dr Scanlon" - 22/2/87
Not medical report but 9 pages of personal hand-written review/criticisms of Dr Scanlon's report, highlighting errors/bias/deception.
9 "Medical report of Dr Scanlon" - 22/2/87
Accurate but for 2 complete pages omitted despite being paginated chronologically. Important as they consist of concluding pages 7 & 8 of his report, specifically highlighting his "opinion".
11 "Medical report of Dr Scanlon" - 12/1/89, paginated 131 - 146
Not medical report but 16 pages of personal hand-written review/criticisms of Dr Scanlon's report, highlighting errors/bias/deception, out of pagination order, inserted as Pp 146 - 131.
12 "Notes on Mr Reynolds from Dr Scanlon" - 18/1/89, paginated 147 - 151
Not Dr Scanlon's notes but his medical report dated 18/1/89, consisting only of Pp 3,4,6,10,12. Pp 1,2,5,7,9 are entirely absent for reference thereto and comprehension thereof.
13 "Interview and examination by Dr Humble" - 12/4/89, paginated 152 - 178
My personal hand-written transcripts of tape recordings of Dr Humble's medical examination, consisting of 27 pages, out of pagination order, inserted in bound volume as follows:
Pp 152 - 165 are in order, being t/s Pp 1 - 14.
Pp 168 - 175 are in reverse as Pp 175 - 168. (They consist of t/s Pp 17 - 24, in reverse).
Pp 166 & 167 follow, being t/s Pp 15 & 16.
Pp 176 - 178 follow, being t/s Pp 25 - 27.
-------------------
Curious/suspicious markings by Greg Holland are inserted in preparation for and/or during the course of the Trial.
eg; P.67 re: my symptoms of headaches following work termination, and Dr Scanlon's reporting of such being erroneous/deceptive/misleading, as proofed by tape recordings/transcripts & written criticisms in the report. I stated to Dr Scanlon: "When I first came off work……..they were regular, constant headaches……the medication that I'm on is helping to reduce them a little". Dr Scanlon reported verbatim except for one gross yet important technical error: "When I first came off work……..they weren't regular, constant headaches……the medication that I'm on is helping to reduce them a little".
P. 67 of "Accompanying" volume comments in right hand margin adjacent to accurate record:
?? whether we are right
Brief to Counsel also consists of curious/suspicious anomalies/peculiarities:
Brief Index
9 "List of Documents of Defendant" - 14/7/89
Record of m.v.a. report by Clay W. Pinnick, referred to in evidence and allegedly lodged with SGIC, produced to the Court and viewed by Greg Holland, was not listed nor 'Discovered'.
10 "Interrogatories administered by the defendant for the examination of the plaintiff" - undated.
11 "Plaintiff's Answers to Interrogatories" - 24/2/89
Neither Interrogatories nor answers thereto were submitted into evidence.
32 "Report of Dr M Robinson" - 19/7/87
Chiropractor report detailing opinion/evidence of a physical nature to my disability was surreptitiously/suspiciously removed, in fact ripped from the bound document 'Reports of Medical Witnesses to be called by the Plaintiff' submitted into evidence, without my knowledge/consent. Mr Holland failed to respond to or acknowledge Judge Burley's highlighting this fact in Court. (T/s P. 61). The following record reinforces any suspicions:
See - "Road From Chiro"
33 "x-ray Reports" - various
2 reports dated 3/7/87, 28/2/89 by Medical x-ray & Ultrasound Services Pty. Ltd. at request of Chiropractor are inserted at P. 79. The 1st report is commented upon by Dr Robinson in his medical report of 19/7/87 as follows: "While the films do not reveal any particular evidence of bony injury they do demonstrate some rotation of three upper thoracic vertebral bodies to the right - thoracic vertebra two, three and four".
Dr Robinson's report, P. 2 comments on this area that elicits greater pain: "He also complained of pain upon palpation of the upper thoracic spine and associated musculature. In particular he was especially tender in the right trapezius fibres adjacent to thoracic vertebrae one through seven".
x-ray report of 3/7/87 states: "disc spaces.…..appear normal".
x-ray report of 28/2/89 '' "There is a slight kyphosis associated with minimal narrowing of several of the disc spaces".
This evidently demonstrates some disc space deterioration since the x-rays of 3/7/87. Langsford and Holland were aware of this evidence. Yet, in addition to Dr Robinson's report being surreptitiously/suspiciously removed, in fact ripped from the bound document of medical reports submitted into evidence without my knowledge/ consent, Mr Holland failed to tender them as evidence, and failed to give any reference to them in support of my disability/claim.
34 "Radiological reports of Dr M Robinson" - undated
"Radiological reports" of Medical x-ray & Ultrasound Services Pty. Ltd are definitely dated 3/7/87 & 28/2/89 Inserted at P. 80, this document repeats: "While the films do not reveal any particular evidence of bony injury they do demonstrate some rotation of three upper thoracic vertebral bodies to the right - thoracic vertebra two, three and four".
39 "Report of Dr E. Scanlon" - 2/7/87
Report not tendered into evidence nor referred to despite its obvious bias.
42 "Various sickness certificates"
Record completely omits original certificate of Dr Hoff dated 12/3/86 for continuing disability for work, and subsequent certificate dated 18/3/86 which states: In my opinion he is suffering from "painful neck & shoulders".
Record also completely omits certificates of Dr Hoff dated October '87, December '87 and February '88, for continuing disability for work, which state: In my opinion he is suffering from "anxiety state and whiplash injury"
43 "Letter from Adelaide Children's Hospital" - 8/7/87
Report of Dr Rice not tendered nor referred to in evidence, nor was Dr Rice called or proofed for evidence by Langsford or Holland. Importance of this evidence is succinctly expressed in Langsford's 'Notes to Counsel' and in letter of 26/7/89 to SGIC's Solicitors, Ward & Partners: "We think it is probably fair to say that the real dispute may well be about the cause of that illness rather than the effects of it. In earlier reports Dr Scanlon had expressed the view that Mr Reynold's condition was simply a product of his own nature and that family events had precipitated the 'breakdown' in early 1986. There was conjecture on the part of Dr Scanlon that the illness of the plaintiff's child Naomi had brought about the plaintiff's illness. We were provided with reports from Dr Michael Rice and Dr Philip Munt". "Mr Reynolds instructs us that he took these tape recordings in order to protect himself againstthe factual errors of the find which were recorded by Dr Scanlon in his first examination of our client. Indeed in his first report Dr Scanlon suggested that our client's anxiety and stress resulted not from the motor vehicle accident or from work but as a result of his children's ill health. A significant amount of time was spent by us obtaining medical and other information to refute that view. We were required to obtain reports from doctors who had treated our client's children in order to show that at the relevant times the children had suffered from no health problems. After studying the reports and the tape recordings we are somewhat concerned that Dr Scanlon has based his remarks about our client on matters which are not disclosed in his report. Until these matters are resolved like our client we can have no confidence whatsoever in the opinions expressed by Dr Scanlon".
44 "Letter from Dr Philip Munt" - 24/6/87
Report of Dr Munt not tendered nor referred to in evidence, nor was Dr Munt called or proofed for evidence by Langsford or Holland. Importance of this evidence at point 43.
45 "Report of Dr Alan Rigert"
Report of Dr Rigert not tendered nor referred to in evidence, nor was Dr Rigert called or proofed for evidence by Langsford or Holland. Report consists of physical examination of myself, on 21/3/86, the same day and prior to the medical interview by Dr Scanlon for SGIC, whose report is grossly erroneous/biased/deceptive. Eg; Dr Scanlon states at introduction: "He appeared to be suffering from no overt psychiatric disorder when I saw him". In conclusion he states: "In his presentation to me he was reasonably cheerful and happy". Dr Rigert's report on the other hand states: "Upon examination it was found that Mr Reynolds was suffering from tension in the neck and shoulder area. There was considerable nervous tension, blood pressure 110/68, heart rate 102". Importance of evidence at point 43..
46 "Accident questionnaire"
Document states at introduction: "Please fill in as many details of the incident as you can. It is very important that you list everything of relevance". Document not tendered as evidence nor referred to in support of my evidence, despite it's extensive detailed history.
Brief Contents
1/. No records/reports from other medical practitioners involved in my case and in support of such. These include:
Dr Moss Orthopaedic Surgeon
Dr Hanieh Neuro-Surgeon
Neil Tuttle Physiotherapist
Kym Harris Physiotherapist
Wendy Rorrison Physiotherapist
Southern Physio & Rehabilitation Service Physiotherapist
Lisa Cummings Occupational Therapist
Trevor R. Ewens Chiropractor
Yet Langsford states in quite pessimistic if not defeatist fashion in his 'Notes to Counsel': "We see the matter as being somewhat difficult to resolve". Holland concurs by his action/inaction.
2/. No records or reports from character witnesses.
Yet Langsford states in quite pessimistic if not defeatist fashion in his 'Notes to Counsel': "We see the matter as being somewhat difficult to resolve". Holland concurs by his action/inaction. Did Holland or Langsford have opportunity to obtain any character witnesses, or for that matter did they have any inkling that reports from character witnesses would be beneficial to the case? The evidence itself reveals the answer!
Dr M Robinson's report dated 19/7/87, P. 3, "TREATMENT"
"Mr Reynolds commenced seeing me at the instigation of his sister in law who is a patient of mine. She, like other members of his family had become distressed at the considerable effect the accident has had on his life".
Mr Holland highlighted this paragraph, underlining: "on his life".
Perhaps another reason why the report of Dr Robinson was surreptitiously/suspiciously removed, in fact ripped from the bound document of medical reports submitted into evidence without my knowledge/consent.
Further, P. 50 of "Accompanying" volume states: At the appointment with Dr Scanlon, "I was nervous and tense, with pain in the neck and shoulders and a headache. My parents had driven me into the City as I also lacked confidence driving myself there. They dropped me off at the front door of the building".
No endeavour whatsoever to obtain character witnesses!
3/. No "Opinion" on liability & quantum sought from Greg Holland by Stanley & Partners.
In another case, Mr Holland provides Stanley & Partners with a 47 page "Opinion" for specific purpose of assessing "liability & quantum". There are some similarities with my case regarding detrimental medical reports against the Plaintiff, psychological sequelae, Plaintiff's symptoms being aggravated by work, and anticipation of Plaintiff's credibility being challenged. Hollandmakes the following comments/observations in preparation for Trial:
"I have been provided with a substantial brief by my instructing Solicitor. Included in it are a considerable number of handwritten notes by the male plaintiff directed both to my instructing Solicitors and previous Solicitors and Counsel who have acted for him. I have read and considered all of the documents contained in the brief".
Examining numerous legal aspects and medical reports at length, Holland notes:
* "There are a number of issues that need to be addressed".
* "For the plaintiff's application to succeed, they must prove ….."
* "It seems clear that the defendant will allege.."
He acknowledges comments in medical reports:
* "a large element of conscious exaggeration".
* "an extraordinary display of abnormal illness behaviour……consciously determined".
* "grossly exaggerating symptomatology for the purpose of his compensation claim".
* "Looking through the medical reports, it is clear that in a number of instances, the physical examination carried out was unsatisfactory".
He comments:
* "The clear majority of the medical witnesses are of the opinion that the plaintiff is unfit for work and has been since that time. He is considerably disabled for physical reasons. He is totally disabled for psychogenic reasons".
* "There are still some relevant documents in existence, e.g.…They have been discovered".
* "On balance weighing up all the relevant factors, it is my opinion……".
He acknowledges:
* "The significance of………effect upon the male plaintiff's credibility".
He concludes:
* "I do not propose to relate all of the ways in which the male plaintiff says that his continuing symptoms have interfered with his life. They are well chronicled in the reports including the detailed ones of the psychiatrists. In my opinion, the plaintiff will be able to prove (injury)".
* "I think that he had considerable difficulty coping, that the psychogenic pain syndrome has developedand has got to the stage where he now regards himself as an invalid".
* "I think that the Court is likely to find that there is some conscious exaggeration in his presentation although, in my opinion, that does not in this case mean that he is a malingerer. I think that it is likely on balance given the nature of the medical evidence that the plaintiff will prove that it is unlikely that his condition will improve in the near future. I say that despite (the defendant's doctor) suggestion that there should be quite a marked recovery following the conclusion of litigation".
* "Doing the best I can in the circumstances, it is my opinion that the likely award of damages that the plaintiff will receive for pain and suffering and loss of amenities is".
* Re: "loss of earning capacity, I do not have sufficient information to enable me to make an assessment…. My instructing Solicitors will have to obtain details……to calculate it……".
* "Insofar as the future is concerned, it is my opinion that the plaintiff will be able to show that for all practical intents and purposes, he is unlikely to recover to an extent where he is going to be able to obtain work".
* "I think that there should be some award for a Beck v Farrelly type damages".
* "It is my opinion, that a likely range of damages that the plaintiff receive is: ……".
* "The male plaintiff's condition has had a considerable effect on their life together.…The female plaintiff ……can claim for the effect the husband's condition has had on their relation -ship. In my opinion, she would receive……".
4/. "Notes to Counsel". "We would like to discuss the matter with you after you have had an opportunity to read the brief. We look forward to hearing from you".
No record of a response to this in the entire file of Stanley & Partners. No comments, letters or assessments on record in the calibre of the above detailed "Opinion",in particular: "I do not have sufficient information to enable me to make an assessment……. My instructing Solicitors will have to obtain details".
5/. "Notes to Counsel". "The plaintiff at the time of his injuries was employed by Hi-Pine Pty Ltd as an inquiry agent. Hi-Pine Pty Ltd was a service company for Riedel Investigations".
No warning or acknowledgement of a conflict of interest by either instructing party or Counsel. It became apparent on final day of the Trial that Mr Holland was a good friend of my employer, in particular of then Manager, Mr Alan Warner. Whether or not that friendship or conflict of interest interfered with proceedings and/or outcome of the Trial remains to be seen. However, it is somewhat intriguing, if not suspect, that Holland failed to cross examine Mr Warner as final witness in the Trial, in order to reinforce my credibility, in particular in relation to my allegations in Court concerning completion of a workers compensation claim form tendered as evidence. It is also somewhat intriguing, if not suspect, that Holland failed to cross-examine Mr Riedel adequately, or discredit his evidence in final address, in order to reinforce my credibility. See "Warner"Combining the above with information that Holland has acted for SGIC as legal Counsel reinforces my suspicions of an obvious conflict of interest.
6/. "Notes to Counsel". "Much of the dispute on the medical evidence is between the views of Dr Hoff on the one hand and Dr Edmund Scanlon a psychiatrist on the other. Dr Scanlon has examined Mr Reynolds on a number of occasions at the request of firstly the workers compensation insurer and subsequently for the defendant". "Sometime after Mr Reynolds' last examination by Scanlon, Reynolds advised the writer (Simon Morris Langsford) that he had made tape recordings of the interviews with Scanlon. He advised us that he had felt that Scanlon had incorrectly reported the substance of conversation and as a result Reynolds had tape recorded all the interviews". "We advised Reynolds that this action might amount to a breach of the Listening Devices Act. It is by no means clear that it is so. We subsequently obtained his instructions to disclose the tape recordings to the State Government Insurance Commission's solicitors". "Accompanying the brief is transcript prepared by Reynolds of the tape recordings of conversation. We hold the actual tape recordings. We believe that this course of action indicates the plaintiff's obsession with the legal process and his illness. We think it is probably fair to say that the real dispute may well be about the cause of that illness rather than the effects of it".
No record of a response to this in entire file of Stanley & Partners. No comments, letters or assessments on record in calibre of above detailed "Opinion". No warning/acknowledgement of a conflict of interestby either instructing party or Counsel. No mention of tape recordings of other medical interviews/examinations by doctors for SGIC, namely Dr Eriksen and Dr Humble. It is crystal clear that the "action (of tape recording the doctors does not) amount to a breach of the Listening Devices Act"! See"Authority for tape recording?"
Langsford suggested to me verbally in his office that such move would most likely pressure SGIC to settle my claim and recommended that the tape recordings be submitted to SGIC's Solicitors prior to Trial, stating in letter dated 13/7/89: "Having read the transcripts and listened to the tapes I think it is fair to say that although it is arguable whether or not we are obliged to inform the insurance company's solicitors of the existence of the tapes and to allow them to hear them. On balance we think it is probably best to let the insurance company's solicitors hear them. We believe that it might assist in convincing the insurance company of the genuineness of your position".
In letter of 26/7/89 to SGIC's Solicitors, Ward & Partners, Langsford states: "Mr Reynolds instructs us that he took these tape recordings in order to protect himself against the factual errors of the find which were recorded by Dr Scanlon in his first examination of our client. The tape recordings were clearly made to protect our client's interest. Whilst we believe that the tape recordings would be protected on the grounds of legal professional privilege we see little point in protecting those tapes from disclosure".
In letter to Langsford dated 19/10/89, I stated: "I insist that you make every effort to review the transcripts of the tapes with me prior to the Trial, so that there is a lesser risk of (my claim proving unsuccessful). As the tapes are obviously my greatest asset in making the case successful, I would like you to closely scrutinise the contents of them in order to highlight any points that conflict with the medical reports. It would be more beneficial to sort out the reasons for my opinions already expressed in the transcripts, prior to the trial, in order for you to be in closer harmony with me, and to save any embarrassment in Court. This would accordingly make the tapes more effective in their purpose".
Obviously something went amiss between this time and the time of the Trial!
7/. The subject of the tape recordings
Evidence reveals Mr Holland spent only 1 hour & 30 minutes listening time on the recordings prior to Trial.
Minimum listening times of the tape recordings are:
Dr Eriksen - 5/12/86 - 20 min
Dr Scanlon -12/2/87 - 65 "
Dr Scanlon -12/1/89 - 48 "
Dr Eriksen - 20/3/89 - 30 "
Dr Humble -12/4/89 - 45 "
Total 208 "
That's 3½ hours with no time for changing tapes, reviewing, and cross-referencing transcripts. Records reveal that prior to Trial Langsford spent 1 time on 12/7/89 "perusing" transcripts to a maximum of 120 mins, and 1 time on 26/7/89 "listening to tapes" to a maximum of 210 mins. Case preparation was thereby grossly inadequate, if not indeed negligent. The evening prior to Trial, Monday 13/11/89, my wife and I attended Rose Park Chambers together with Langsford, to confer with Holland. During a 3 hour long discussion, Holland made several attempts to dissuade use of tape recordings in legal proceedings.
Letter of Mr Holland to Stanley & Partners, dated 16/11/89: "I confirm that I also told (Reynolds) that by taking the tape recordings of the interviews he had with the various doctors he may have committed an offence against the Listening Devices Act. I warned him that by bringing them out in evidence he may lay himself open to prosecution. He told me that he wanted them used".
One might wonder why Holland would put this information in letter to Langsford, particularly on 3rd day of the Trial, after having argued in Court on the previous day: "These tapes were not obtained contrary to the provisions of the Listening Devices Act. They clearly fall within the s.7(1) (b) exemption as being, (Act quoted) ….They are not illegally obtained, they are clearly not illegally obtained, the Listening Devices Act has been very careful to make exceptions about conversations that people themselves are involved in".
Why then did Holland state contrary on the evening prior to Trial? He surely was in possession of/had access to the content of the Act prior to Trial! He had been advised in "Notes to Counsel" delivered 1 month earlier, 19/10/89:
"We advised Reynolds that this action might amount to a breach of the Listening Devices Act. It is by no means clear that it is so. We subsequently obtained his instructions to disclose the tape recordings to the State Government Insurance Commission's solicitors".
Yet, Langsford, making these recommendations, states in letter of 26/7/89 to SGIC's Solicitors: "Mr Reynolds instructs us that he took these tape recordings in order to protect himself against the factual errors of the find which were recorded by Dr Scanlon in his first examination of our client. The tape recordings were clearly made to protect our client's interest".
During court proceedings, Langsford and Holland made repeated attempts to dissuade use of tape recordings as evidence, advising that evidence heard in my absence at their advice/ recommendation was favourable. They advised:
"things are going well", "we don't need the tapes to win", "Master Burley has heard them and being human he will see that you are genuine, the case will be won on merits alone".
Things did not go well! The tapes were not even given mention despite the fact that Master Burley listened to some in his chamber at the advice/recommendation of Holland. Master Burley did not prove to be "human" or see that I was "genuine". "Merits" were thrown out the window!
Why then did Holland/Langsford attempt to dissuade use of tape recordings in legal proceedings? What was their motive in this persistent pressure to omit evidence? I insisted to legal Counsel that all tapes be played to the Master and was given the impression this request had been honoured. I discovered later that 2 of the tapes were not even heard. One related to Dr Eriksen who had stated in his medical report of 22/3/89 that I had removed my trousers in his rooms without overt disability, thereby proving prejudicial. This was a lie, as I never removed my trousers. The other tape related to Dr Scanlon whose report of 18/1/89 consisted of numerous errors and inconsistencies, thereby proving prejudicial. See point 24/.
Interestingly, if not intriguingly, following conclusion of the Trial, Holland wrote a letter to Lansgsford, dated 21/11/89, stating: "I confirm that I advised (Reynolds) that I thought that he had 'made a mistake' in instructing me to use the tapes as I thought that they were really 'red herrings' in the action and that I did not think that he had enough evidence to prove that any of the doctors were lying. I tried to point out to him that there was a difference between disputes as to factual matters contained in the doctors' reports and disputes as to their opinions".
Before analysing this carefully, I point out that there is no record Langsford responded. Why? See "Red Herring"
8/. "List of Documents of Plaintiff"- 22/5/89 - submitted to Ward & Partners.
List contains no proofs of evidence from my medical practitioners in preparation for Trial. Evidently, none were obtained. Why? Why didn't Mr Holland insist on such proofs being taken in preparation for Trial, as one might reasonably expect of such a "competent" Barrister?
9/. "List of Documents of Defendant"-14/7/89 - submitted to Stanley & Partners.
"First Schedule, Part 11 (3)" "Report of investigator dated 4th April 1989 (and subsequent reports) prepared for the purpose of obtaining legal advice and for the use in legal proceedings".
Neither this report nor its foundation material was used in evidence, either directly or indirectly. The file of Ward & Partners reveals evidence of 'investigator' surveillance and film. Evidently, this was not used in Court, as it was not favourable to SGIC's cause of disputing my claim.
10/. "Interrogatories administered by the defendant for the examination of the plaintiff"
Interrogatories related to the collision were not used in Court as evidence. Question 11 required no answer, as not applicable. Question 14(b) required no answer, as not applicable.
11/. "Plaintiff's Answers to Interrogatories" - 24/2/89
Interrogatories related to the collision were not used in Court as evidence. Question 1 answered: (a) "I suffer from a whiplash type injury to my neck and shoulder and the effects of that injury".
Question 11 required no answer, as not applicable, relating to partial incapacity.
My handwritten notes reveal I answered "N/A"(not applicable).The document records "Yes"
Question 14(b) required no answer as not applicable, part (a) being answered in "No".
My handwritten notes confirm that I answered "No".
12/. "Summons" - 11/4/88. Document, lodged with Court on 11/4/88, identified as Supreme Court case No. 817 of 1988, names Mr Pinnick as Defendant.
Document is not one lodged with Court in actual Trial, dated 3/11/88, identified as Supreme Court case No. 2553 of 1988. State Government Insurance Commission is named as Defendant. Why does Mr Holland have a different document in his Brief? Brief - delivered19/10/89, almost 1 year after the Summons of 3/11/88.
13/. "Statement of Claim". Document in Brief, lodged with Court along with Summons on 11/4/88 and identified as Supreme Court case No. 817 of 1988, states negligence of Mr Pinnick in subject m.v.a. The following chart shows anomalies between document in Brief and document used in Trial:
Brief to Holland
Evidence to Court
Action 817 of 1988. Clay Pinnick named as Defendant.
"PARTICULARS OF INJURIES"
"The plaintiff sustained a whiplash type injury to his neck causing pain and headaches. The plaintiff consulted his general medical practitioner and underwent physiotherapy treatment. The plaintiff's neck failed to improve and in February 1986 the plaintiff was referred to an Orthopaedic Surgeon for assessment and management. As a result of the said injury the plaintiff developed anxiety depression or similar psychiatric disorder and as a result of that disorder became incapacitated for his employment………. As a result of the injury the plaintiff has suffered and continues to suffer pain in his neck and headaches".
Action 2553 of 1988. SGIC named as Defendant. This document inserts at point 6:
"The said Clay W Pinnick cannot be located to be served with process", then goes on to:
"claim pursuant to the provisions of Section 113 of the (Motor Vehicles) Act (1959)" against SGIC as Defendant.
"PARTICULARS OF INJURIES"
"The plaintiff suffered a whiplash type injury to his neck causing pain and headaches. The plaintiff consulted his general medical practitioner and underwent physiotherapy treatment. The plaintiff's neck failed to improve and in February 1986 the plaintiff was referred to an Orthopaedic Surgeon for assessment and management of his neck condition. As a result of the said injury the plaintiff subsequently developed anxiety depression or similar psychiatric disorder. As a result of that disorder the plaintiff became incapacitated for his employment………. As a result of the injury the plaintiff has suffered and continues to suffer pain in his neck and headaches".
14/. "Statement of Claim". The negligence of Mr Pinnick is stated in part as follows:
"The said collision was caused by the negligence of the defendant".
PARTICULARS OF NEGLIGENCE
The said Clay W Pinnick was negligent in that he:-
(a) Failed to keep any or any proper lookout.
(b) Drove without due care or attention.
(c) Failed to stop, slow down, swerve or otherwise manoeuvre or control his vehicle so as to prevent the said collision.
(d) Drove at an excessive speed in the circumstances.
"collision" = a violent rushing against; hitting or striking hard together; crash. It does not imply a minor touch or soft impact, as alleged in evidence by Pinnick. SGIC submitted the following "Defence" in part, dated 19/12/88:
2 The defendant admits the allegations in paragraph…5 of the Statement of Claim.
Therefore, SGIC admits that Pinnick "Drove without due care or attention" and "Drove at an excessive speed in the circumstances". Mr Holland failed to reinforce this issue by his Court procedure. However, it is somewhat curious/suspicious as to the reasons why Mr Holland did not have the "Defence and Counterclaim" document in his Brief, for the purpose of raising these issues.
15/. "Statement of Claim". "The plaintiff consulted his general medical practitioner and underwent physiotherapy treatment. The plaintiff's neck failed to improve and in February 1986 the plaintiff was referred to an Orthopaedic Surgeon for assessment and management of his neck condition".
Mr Holland and Mr Langsford failed to obtain records/reports from other medical practitioners involved in my case and in support of such. These include:
Dr Moss Orthopaedic Surgeon
Dr Hanieh Neuro-Surgeon
Neil Tuttle Physiotherapist
Kym Harris Physiotherapist
Wendy Rorrison Physiotherapist
Southern Physio & Rehabilitation Service Physiotherapist
Lisa Cummings Occupational Therapist
Trevor R. Ewens Chiropractor
Of significance in relation to this matter concerning medical evidence is Letter of Mr Holland to Mr Langsford, dated 16/11/89. (3rd day of Trial): "I confirm that (Reynolds) instructed me that he wanted the chiropractor Dr. Mark Robinson called. I indicated to him that there may be some difficulties about that, in particular the Court might for example be prepared to accept the opinions of the orthopaedic specialists as opposed to Dr. Robinson when it came to various matters of medical opinion and the reading of x-rays".
The above chart reveals that I only had 1 "orthopaedic specialist". Despite the above claim in an endeavour to not call the Chiropractor, (see "Road From Chiro") Holland/Langsford absolutely failed to obtain records/reports from other medical practitioners involved in my case and in support of my claim for damages, in accord with the "Statement of Claim". Further, Mr Holland failed to not only tender the x-ray report in question, which states: "There is a slight kyphosis associated with minimal narrowing of several of the disc spaces". evidently demonstrating some disc space deterioration since x-rays dated 3/7/87, but also failed to give any reference to them in support of my disability/claim. So, who was the medical expert that was going to give evidence of "medical opinion and the reading of x-rays" in relation to the critical evidence that I had relied upon in part, that "in particular the Court might for example be prepared to accept" "as opposed to Dr. Robinson"?
16/. "Memo to Mr Langsford". Record from Aldermans, Barristers and Solicitors, gives evidence of my work requirements: "The employer expected its employees to work long and often irregular hours, considerablyin excess of 38 or 40 hours each week. These were part of normalduties and expectations and were not regarded as overtime".
Despite this evidence, or at the very least foreknowledge, Mr Holland failed to use this to reinforce my credibility or to dispute Mark Riedel's evidence: "We weren't specific with requesting………specific hours and we virtually told………themselves to set their own time limits. ……it depends on what their commitments are usually".
Further, Mr Holland failed entirely to cross-examine Mr Alan Warner, the Manager at the time of my employment. See "Warner"
17/. "Report of Dr M Robinson" - 19/7/87 surreptitiously/suspiciously removed, in fact ripped from the bound document of medical reports submitted into evidence, without my knowledge/consent. Mr Holland highlighted the word "typical" with 2 question marks, as if querying Dr Robinson's diagnosis of such.
"DIAGNOSIS" - P. 3
??
"In the cervical spine Mr Reynolds exhibits many of the typical symptoms and examination findings of some one who has been involved in a rear end collision creating significant flexion/extension forces on the spine. This has resulted in some ligamentous strain and cervical and upper thoracic myofascitis".
This appears 'typical' of Mr Holland's earlier marks at P. 4 of this report, re: P. 67 of "Transcript of Taped Medical Examinations of Plaintiff and Plaintiff's Instructions about Examinations".
?? whether we are right
It also appears 'typical' of Mr Holland's attitude towards my claim and his court procedure to fail to present evidence in my favour, despite the evidence I provided Mr Langsford with insupport of "typical" symptoms experienced from a whiplash injury. It is interesting/intriguing to note that despite being forearmed with this evidence, Holland states: "in particular the Court might for example be prepared to accept the opinions of the orthopaedicspecialists as opposed to Dr. Robinson when it came to various matters of medical opinion".
It is perhaps not without significance that Dr Humble for SGIC, was the only "orthopaedic specialist" called to give evidence in the Trial. It is perhaps not without significance too that all the evidence points to Mr Holland failing to present such supportive evidence of Dr Robinson for ulterior motive. Further, at the top of P. 3 of Dr Robinson's report, directly above the query of Dr Robinson's diagnosis, Mr Holland wrote in the following comments:
Mind - Tech Further evidence CT Scan Kim Harris
Despite acknowledging this 'further evidence', Holland failed to use it in support of my claim.
18/. "x-rays Reports" - various
Reports of 28/2/89, 3/7/87 by Medical x-ray & Ultrasound Services Pty. Ltd., taken at request of Chiropractor, Dr Robinson, are copied on 1 page in that order. The 1st chronological report of 3/7/87 is commented upon by Dr Robinson in his medical report of 19/7/87, as follows: "While the films do not reveal any particular evidence of bony injury they do demonstrate some rotation of three upper thoracic vertebral bodies to the right - thoracic vertebra two, three and four".
Dr Robinson's report, P. 2 comments on this area that elicits greater pain: "He also complained of pain upon palpation of the upper thoracic spine and associated musculature. In particular he was especially tender in the right trapezius fibres adjacent to thoracic vertebrae one through seven".
x-ray report of 3/7/87 states: "disc spaces.…..appear normal".
x-ray report of 28/2/89 " "There is a slight kyphosis associated with minimal narrowing of several of the disc spaces".
This evidently demonstrates some disc space deterioration since x-rays of 3/7/87. Langsford & Holland were aware of this evidence. Yet, in addition to Dr Robinson's report being surreptitiously/ suspiciouslyremoved, in fact ripped from the bound document of medical reports submitted into evidence, without my knowledge/consent, Mr Holland failed to tender them in court as evidence and failed to give any reference to them in support of my disability/claim. Why? When Mr Holland questioned Dr Robinson in Court re: x-rays taken 3/7/87, (T/s P. 173) he surely referred to his brief which held the 2 copies of x-rays described above. Therefore, why did he completely omit any reference to them in support of my disability/claim? And why did he completely omit any reference to the x-ray report dated 28/2/89, which was positioned first? Dr Robinson later advised me that he gained the impression that Mr Holland was purely "going through the motions" in his examination in chief of his evidence, as if disinterested in the facts.
19/. "Radiological reports of Dr M Robinson"
Extract of medical report of Dr Robinson dated19/7/87,surreptitiously/suspiciously removed, in fact ripped from the bound document of medical reports submitted into evidence, without my knowledge/consent. A section of P. 3 only of the medical report comments under:
"RADIOLOGICAL FINDINGS"
"A thoracic series was performed by medical radiologists Drs Benson and partners at my request on July 3rd 1987. While the films did not reveal any particular evidence of bony injury they do demonstrate some rotation of three upper thoracic vertebral bodies to the right - thoracic vertebra two, three and four".
Dr Robinson's report, P. 2 comments on this area that elicits greater pain: "He also complained of pain upon palpation of the upper thoracic spine and associated musculature. In particular he was especially tender in the right trapezius fibres adjacent to thoracic vertebrae one through seven".
Dr Robinson's report, P. 3 states directly after the above comments: "While this can be a normal finding and be asymptomatic, in my opinion the injury which he suffered and the muscular damage he incurred, is possibly the reason for this finding in his case".
Mr Holland had this information at his fingertips, yet failed to use it in support of my disability/ claim. Just another example of destruction of evidence! Further, this information was positioned in the medical report directly above where Mr Holland wrote in and highlighted the word "typical" with 2 question marks, as if querying Dr Robinson's diagnosis of such. Medical reports of Dr Eriksen and Dr Humble, and tape recordings/transcripts thereof reinforce presence of the x-ray report dated 28/2/89 and its purpose in the case. Therefore, Mr Holland was well aware this evidence existed in support of my disability/claim. In particular, P. 42 of "Accompanying" volume, consisting of tape recording transcripts of Dr Eriksen's medical examination, states:
"Dr Eriksen failed to read or comment on later radiological report (28/2/89) showing degeneration of disc spaces, or the attached comments on initial radiological report as detailed above by Dr Robinson".
Mr Holland followed suit by neglect to make reference to this report in support of my claim.
20/. "Report of Dr E T Eriksen" - 9/12/86
The following anomalies exist between this report, instructions given to legal Counsel and evidence adduced or presented by Mr Holland in course of the Trial. Mr Holland made numerous markings in preparation for trial. Of particular interest are comments directly adjacent to words of Dr Eriksen: "Standing in the erect position he indicated he was feeling pain of all the cervical spine, of the mid thoracic spine and although there was a slow range of movement there was a full range of movement with mid and lower cervical discomfort". Did not he say "Can't touch my toes" (17)
P. 17 in "Accompanying" volume discloses detail of Dr Eriksen's examination as per tape recording/transcripts, thereby contradicting Dr Eriksen's reporting of "a full range of movement". Dr Eriksen also made minimal reference to damage of the motor vehicle driven by myself, thereby 'playing down' the impact or exaggerating its part in contributing to an injury.
Mr Holland highlighted Dr Eriksen's comments on P. 1 of his report with a large ?
The tape recording/transcripts clearly confirm that Dr Eriksen made no attempt whatsoever to obtain an accurate record of damage sustained or report full details of the m.v.a. Evidence of such deception would have proved advantageous to my case. These essential facts were considered by the Court to be crucial and indeed critical to the case. Therefore the accurate record which Dr Eriksen surreptitiously omitted would have reinforced my evidence.
Mr Eriksen failed to report the following:
(a) Model of my vehicle.
(b) Strength of the bumper bar component as opposed to the offending vehicle.
(c) Overall strength of my vehicle as opposed to the offending vehicle.
(d) Dent in the tailgate.
(e) Tailgate being jarred.
(f) Tailgate being mis-aligned.
(g) Operation of electric window being affected.
(h) Tow bar fitted.
(i) He particularly omits reference to " ... very solid car .... dent in the tailgate, the tailgate was mis-aligned .... " as per tape recordings.
(j) He persistently cut me off to avoid getting other information, as per tape recordings.
These were all crucial factors in assessing the disability and claimproperly and fairly.
Trial T/s Pp 17,114,115,120-122,178, 232-236. Judgment Pp 2,3 & 4.
Mr Holland highlighted this omission on the part of Dr Eriksen in "Accompanying" volume, P. 4, yet failed to call Dr Eriksen to reinforce my evidence. At other areas reported by Dr Eriksen, Holland queried date of the m.v.a., location, symptoms following, whether I broke down and cried at the interview, amount of medication taken, Dr Eriksen's offer to help me re: light work/speaking to solicitors of SGIC. But one section in particular that Mr Holland was aware as advantageous/favourable, was highlighted by him in "Accompanying" volume at P. 18, where Dr Eriksen commented: "I think he injured himself originally and now he's got this anxiety state which has come on after".
but completely omitted this information from his medical report. Mr Holland was well aware that this statement of Dr Eriksen totally contradicted his medical report which stated on P. 2: "I can see no organic basis which would render this person unfit to undertake his working activities ………I cannot estimate any physical disability as a result of his stated motor vehicle accident".
So, at some point in time, Mr Holland doubted the integrity of Dr Eriksen for SGIC, in his medical assessment/ reporting thereof. The medical report was deceitful/conspiratorial, as evidenced by the tape recordings/transcripts Yet, in his 'wisdom', Mr Holland elected not to call Dr Eriksen as witness in the Trial, knowing full well that my credibility was at stake.
21/. "Report of Dr E T Eriksen" -22/3/89
The following anomalies exist between this report, instructions given to legal Counsel and evidence adduced or presented by Mr Holland in course of the Trial. Mr Holland made numerous markings in preparation for trial. Of particular interest are comments directly adjacent to words of Dr Eriksen: "His gait and stance were normal, he was able to remove a pair of shoes and stand up and remove his trousers without overt disability". Lie wife tied laces Not taken off No
Re: Dr Eriksen's description of my symptoms and their effect on me:
Not accurate note of what said (27)
P. 27 in "Accompanying" volume discloses detail of description at Dr Eriksen's examination as per tape recording/ transcripts, thereby contradicting Dr Eriksen's report. I discovered after the Trial that 2 of the tape recordings were not heard by Master Burley despite my insistence to legal Counsel that all tapes be played to him. I was given the impression this request had been honoured. One of those not heard related to Dr Eriksen's allegations detailed above and commented upon by Mr Holland as a lie. I also requested that doctors be questioned in accordance with my instructions. Perhaps for obvious reasons, Counsel for SGIC elected not to call Dr Eriksen to give evidence.
A memo in the file of Stanley & Partners, dated 15/11/89, 2nd day of the Trial, states: "T/I Holland, he saying Davis says they not calling Dr Eriksen. He asks whether we should call him : SML saying no! He agreeing".
Langsford and Holland advised me that this reluctance on the part of Counsel for SGIC to call Dr Eriksen would be considered by the Master to be in my favour, so they decided not to call him either. Obviously bad advice, because the Master did not take that reluctance into account at all. Opportunity of questioning Dr Eriksen with regard to errors and lies, and more particularly with respect to his comments in the tapes whereby he felt that I had suffered an initial injury from the m.v.a. with subsequent psychological sequelae, was completely surrendered.
At other areas reported by Dr Eriksen, Holland queried discussion of physical pain and x-rays at the examination, medication, rest periods, diagnosis, discussion re: previous appointment and the Flinders Medical Centre Pain Clinic. But one section in particular that Mr Holland was aware as advantageous/favourable, was highlighted by Holland in the medical report at top of P. 1:
E Affected (29) (30)
P. 30 in "Accompanying" volume discloses detail of Dr Eriksen's comments on my Chiropractor and x-rays. See point 18/. "x-rays Reports" - various, relating to evidence destroyed by Holland.
P. 29 in "Accompanying" volume discloses detail of Dr Eriksen's comments: "Mr Reynolds, you had a very minor motor vehicle accident 3 years ago, you've stayed the same and not got any better, now it might be obvious to you what's wrong with you but it's not obvious to me, has anyone told you what the problem is, why you've got pain like this and it's not got better over 3 years?"
Mr Holland hereby acknowledges the importance of information disclosed at the examination as per tape recordings at some stage. He was clearly aware of my comments on Pp. 29 & 30 in specific reference to Dr Eriksen:
Slightly flustered under the pressure.
The above comments give evidence of Dr Eriksen's attitude.
Contradiction in report of 9/12/86, page 2, par 10.
See dialogue of 5/12/86, bottom of page 11.
Dr Eriksen's report of 9/12/86, P. 2, par 10 states: "I believe the single most important factor in this person's treatment at this stage is to reintegrate him back into a working situation and once his anxiety state can be allayed I think it is reasonable to expect that his physical symptoms will return to normality".
This evidence clearly shows the complicating factor involved in the "anxiety state", valuable evidence of Dr Eriksen which Mr Holland elected not to submit to the court. Dialogue of 5/12/86 reveals Dr Eriksen's comments during interview, whereby he states: "these things sometimes take 3 years to settle up, now, undoubtedly, you know, the legal process takes its time, I've got no idea what's going to happen, I don't think anyone, but, you know mentally and physically 3 years down the road, he's going to be in real problems".
My comments in left-hand column alerted Mr Holland to: "Contradiction in thought. Report 22/3/89, page 1, par 10. Page 2, par 8. Comments in dialogue of 20/3/89, page 7"
These gave cross-reference back to above references, all of which Mr Holland highlighted, yet failed to rely upon in course of the Trial. So, at some point in time, Mr Holland doubted the integrity of Dr Eriksen for SGIC, in his medical assessment/ reporting thereof, and in fact was confident that Dr Eriksen had lied. The medical report was deceitful/ conspiratorial, as evidenced by the tape recordings/transcripts. Yet, in his 'wisdom', Mr Holland elected not to call Dr Eriksen as witness in the Trial, knowing full well that my credibility was at stake.
22/. "Report of Dr Edmund Scanlon" - 31/3/86
The following anomalies exist between this report, instructions given to legal Counsel and evidence adduced or presented by Mr Holland in course of the Trial. Mr Holland made numerous markings in preparation for trial. Of particular interest are comments directly adjacent to words of Dr Scanlon: "He appeared to be suffering from no overt psychiatric disorder when I saw him; in the physical area he tended to move his head from side to side on a few occasions during the interview" .We dispute (50)
"(his daughter) is on a special formula. She has apparently now developed a silent reflux which is contributing to her croup problem". Wrong (51) Put what we say @ (51)
"In his presentation he was reasonably cheerful and happy……". Wrong (53)
"In terms of his family life it would appear that for the last two and three quarter years there have been major problems with their youngest child, with recurrent hospitalization. This would undoubtedly have produced anxiety in both himself and his wife. At the same time we know his wife's father died some six months ago; which although he says she didn't have a lot to do with him, would equally produce anxiety in her".What……. (54)
"he does suffer from an anxiety state, most of which revolve around family problems".What ? (55)
So, at some point in time, Mr Holland doubted the integrity of Dr Scanlon for SGIC, in his medical assessment/ reporting thereof, and in fact was confident that Dr Scanlon had made gross factual errors. Pp 50 - 55 in "Accompanying" volume disclose detail of description at Dr Scanlon's examination as per tape recording/transcripts, thereby contradicting Dr Scanlon's report. In particular, P. 51 gives a clear explanation of Naomi's situation, Dr Scanlon's excited response to information at time of interview, and Dr Scanlon's gross error in relation to history taking and reporting on such issue. ie; Dr Scanlon converted past tense information into present tense and used such to formulate an opinion for dispute of the claim. Trial T/s Pp 264 - 265 records Dr Scanlon's evidence under examination of Mr Davis for SGIC:
Q. "The next challenge was to the accuracy of your recording what he told you about the daughter's health. ……he said that he told you that she had in the past developed a silent reflux but that at the time that he saw you that she was not suffering from any medical problem".
A."Correct".
Q. "If his recollection was more accurate than the way you have recorded it does that affect - if his account to you was as he related rather than as you have recorded it does that affect your opinion?"
A."No, what is down there is what he told me".
Tape recordings/transcripts clearly confirm that Dr Scanlon's history taking of this information, seen by him as relevant to his opinion, was erroneous. Pp 69, 70 of "Accompanying" volume details this fact. My notation in left column of P. 70 draws the following to Mr Holland's attention specifically for purpose of setting the record straight and for legal argument:
"Report 22/2/87 Page 5. Par 1. Re: Children. Totally deceitful cover up. Perpetuation of a malicious lie from first report 31/3/86. Failure to report truth after being advised".
Further, Dr Scanlon's own words expose error/hypocrisy in his finding/opinion: "(his daughter) has apparently had trouble with reflux from birth and was allergic to breast milk and cow's milk (all past tense) and is (converted to present tense) on a special formula. She has apparently now developed a silent reflux which is contributing to her croup problem".
Dr Scanlon converted past tense information into present tense and used such to formulate an opinion for dispute of the claim. Yet immediately before and after this conversion of history to formulate his opinion, he wrote: "Daughter - 3 in May".(hardly on a special milk formula at age 3) "At the present time she is terrific and is quite a pleasure at the moment".
Hence there were no "family problems" for the basis of Dr Scanlon's profound opinion. This should have been clearly obvious to Mr Holland and easy to dispute.
Further, Mr Holland highlighted Dr Scanlon's comments in reference to "factual errors" making "a difference to the opinion" with a "VIP" notation as detailed below. Trial T/s P. 265 records Dr Scanlon's initial acknowledgement of his error when he answers: "Correct"in response to Mr Davis' question. Yet he then goes on to contradict himself by claiming "No, what is down there is what he told me".
Mr Holland failed to pick up on this point and challenge Dr Scanlon. But beyond that, his cross-examination of Dr Scanlon on these points was weak and not in harmony with my instructions. Trial T/s P. 289 records Dr Scanlon's evidence under cross-examination of Mr Holland:
Q. "I suggest to you that it is not an accurate statement to say that the difficulties that the child
had would undoubtedly have produced anxiety in the plaintiff".
A. "No I stick by that very solidly, 100%".
Mr Holland then immediately jumps onto another topic and fails to dispute this point further. His action/inaction on this point is contrary to "Notes to Counsel" and Letter of 26/7/89 to SGIC's Solicitors:
"Much of the dispute on the medical evidence is between the views of Dr Hoff on the one hand and Dr Edmund Scanlon a psychiatrist on the other. We think it is probably fair to say that the real dispute may well be about the cause of that illness rather than the effects of it". "Mr Reynolds instructs us that he took these tape recordings in order to p
Victoria is by no means a model state. It is still evolving and has had what some might reflect on as a political past that threatened and undermined the underlying principles of good government. To compare their Workcover system to a model for South Australia is not nescessarily sound judgement given its chequered past.
From Vic Hansard 2 March 2000.
There are what Transparency International calls the pillars of integrity for good governance. The Labor government is rebuilding the pillars of integrity in Victoria. They include an independent judiciary and public prosecution service; free access to government information; systems of referral and independent investigation such as the Auditor-General -- or Inspector General, which is the term used in some countries; an Ombudsman; a professional public service; a free press; and a vigorous and open Parliament and representative system.
Many rights were lost during the tenure of the former Kennett government.
The Equal Opportunity Commissioner and local councils were sacked; common-law rights of injured workers were removed; the work of the Auditor-General was undermined; free speech by churches and community groups was attacked; some press was shut down; student organisations were silenced; the Director of Public Prosecutions and the Children's Court magistrate were hounded from office; access to the Administrative Appeals Tribunal was restricted; in almost 200 pieces of legislation the right of appeal to the Supreme Court was removed; planning rights were removed; and the processes of Parliament were abused. I could speak for a long time about that, including pointing out that in the few months the Bracks Labor government has been in power Parliament has sat for more days than it sat in a year under the former government!
Under the former government the Accident Compensation Tribunal, which was set up as a court in 1984, was abolished and the judges sacked. So much for respect of principles by the former government!
From the Independent Weekly. 06/10/07
Other less well-researched media in Adelaide last week perpetuated several myths that WorkCover appear more than happy to go along with, but which should be addressed There are fewer than l0,000 injured workers currently receiving benefits, not 35000. The rate of return to work is on par with that in other states. The number of permanently incapacitated workers trapped on benefits in SA has created the liability and skewed the figures.
WorkCover legislation was written with the intention that anyone on benefits for more than two years be paid a redemption. In the six years since WorkCover made the policy decision to ignore legislation and not offer ‘reasonable redemptions', it has banked over $600 million and now has over $1.3 billion in funds under management. Therefore. in the past six years SA business has been over-charged $600 million in levies while Workcover has not paid fair redemptions. This in turn creates the liability which allows it to justify banking this enormous sum. Incidentally Workcover Minister Michael Wright’s father wrote the legislation that his son is about to destroy.
By Phil Moir
(Oct. 12, 2007) A 40-year-old handicapped man died earlier this month while diving on a salmon farm near Dalcahue, Chilóe (Region X). The death brings to 50 the number of Chilean salmon industry divers who have perished in just the past two years.
Several years ago, Pedro Alejandro Domínguez Reinaldos suffered a diving accident that left him unable to walk. The handicapped man, however, continued in the business, working as a middleman between area divers and farmed salmon companies.
But this last weekend, according to a report by Ecoeceanos News, Domínguez suited up and took to the water himself after he was unable to contract divers for a job with the Quiquel Cultivation Center in Dalcuahue province. The decision proved to be fatal.
“The fact that the worker who died was handicapped just shows that there’s no one at the salmon farm worried about security. This diver was absolutely illegal. He didn’t have a diving permit. His equipment was in poor condition. There was no contingency plan and the diver wasn’t trained,” Chiloé Provincial Labor Inspector Víctor Inostroza told the online news source.
Domínguez’ death, sadly, is hardly an isolated case in Chile, where the country’s booming farmed salmon industry employs an estimated 4,000 divers. Just six weeks earlier, a diver named Pedro Pablo Alvarado died while fixing underwater netting on a Chiloé-area salmon farm. Like most of the country’s salmon industry divers, Alvarado worked for a subcontractor rather than directly for the owner of the farm – in this case Norwegian aquaculture giant Marine Harvest. As a result, any legal action against the transnational company is unlikely.
The subcontractor, a company called ASSERMA Ltd., reported that Alvarado was in the water approximately 10 minutes when colleagues on the surface detected a problem. A fellow diver then entered the water and, at a depth of approximately 20 meters, located Alvarado. The diver dragged Alvarado’s motionless body to the surface. The victim was then rushed to a nearby hospital, where doctors pronounced him dead. An autopsy determined the cause of death as Acute Decompression Illness, also known as the “bends.”
Part of the problem is simply the nature of the job. As Javier Ugarte, president of the Region X-based Confederation of Salmon Industry Workers, told the Patagonia Times: “Diving is precarious, dangerous work, in which it’s very common to have situations of that nature, accidents like the one we just had, accidents that result in death.”
But the occupation has been further compromised by just how rapidly Chile’s salmon industry has expanded in the past two decades. Last year Chile exported some US$2.2 billion worth of salmon and trout, a phenomenal output considering that just 15 years ago, the country’s farmed fish exports were worth only US$159 million. The industry’s appetite for divers and other workers has increased correspondingly.
“Overnight, diving in Chile went from being informal, something that was done by shell fish divers, to professional. That means the labor force didn’t have sufficient training. So many shell fish divers moved into aquaculture, and their preparation was mediocre,” said Cristián Soto, president of the Professional Divers Union (SIBUP).
The high mortality rate has prompted some serious safety changes. Until recently, said Soto, divers often worked with just a simple mask and regulator. That’s no longer the case. Companies now require divers to have safety tanks and use modern, safer masks with more advanced breathing apparatuses.
Yet the industry continues to cost divers their lives. In just the past 18 months, 15 divers have perished, according to Soto. “Even with the new system they keep dying. Why? Poor preparation. There’s been little concern about training divers to use the equipment. Also, rules aren’t respected about how long divers can be down, and at what depths,” he said.
Generally, divers are not supposed to descend beyond 20 meters, although in 2003, the salmon industry lobbied successfully to extend the range to 36 meters for qualified “intermediate” divers. Nevertheless, insisted the SIBUP president, salmon farm divers are regularly expected to work at 40, 50, even 60 meters below the surfaced.
“For those of us who work on installing and maintaining the nets, this is something that happens to us every day. Every day we go down further than we’re supposed to. Why do we do it? Because if we don’t, we’ll be out of work,” he said.
Another problem is how continually divers must drop and ascend. “It’s like a Yo-Yo. That’s what they call it. It can cause pressure problems. And in Chiloé, where so many of the salmon farms are concentrated, there aren’t any hyperbolic chambers to treat Decompression Illness,” said economist Francisco Pinto of the environmental NGO Fundación Terram.
Divers, he added, aren’t the only salmon industry workers to encounter safety issues. In a report published earlier this year, Pinto noted that the accident rate in Chile’s salmon industry – 10.43 percent according to the Chilean Security Association – is well above the national average of 7.96 percent. Other studies put the industry’s accident as high as 30 percent.
What, then, should be done to better protect workers? For Soto, the focus needs to be on prevention and professionalism. Workers need sufficient training. But companies must also respect rules that are in place.
“We the workers, the ones who produce these riches, we need to defend our rights,” he said. “We defend ourselves out of fear. I didn’t wake up one day and say, ‘I’m going to form a union because I want to earn more money.’ No, these unions come together because people are thinking about their wives and kids, who are afraid because their dads work in places where they could die.”
The Hon. A. BRESSINGTON (16:38): I move:
That this council condemns—
1. The practices of the WorkCover Corporation in both the administration of the fund and in the treatment of injured workers and the lack of support and rehabilitation for those workers;
2. The Premier for backing down from his call for a royal commission or similar wide-ranging inquiry into allegations of corruption by WorkCover in May 1997, whilst leader of the opposition; and
3. Other parties for allowing WorkCover to languish in dysfunction since that time.
This is going to be quite a lengthy motion. I wholeheartedly support the motion of the Hon. David Ridgway on WorkCover, but I wish to also knowledge that this motion does not go far enough to address the range of issues and concerns which affect injured workers in their everyday dealings with WorkCover as they live on or below the breadline and between sparse employment opportunities and the welfare system. Ordinary injured workers do not care about the cost blowouts, unfunded liabilities and deteriorating financial positions, tender processes, claims management and sourcing arrangements or actuarial reports.
They do not care about organisational charts, agent resources, commercial arrangements, agent performance evaluation programs, clauses 4.6, 7.1 or 9.3 of WorkCover's claims management agreements, transition in plans, or certificates of readiness. They want to know how to cope with falsified witness statements, perjury by the WorkCover corporation's lawyers in the courtroom, and questionable judgments by what appears to be incompetent officers of the court. They want to know what to do when their rehabilitation is prematurely terminated or their payments stopped for no reason. They want to know what to do when their treating medical officer is threatened, when they are unlawfully put under surveillance, and their confidential information is leaked to third parties such as the Family Court, banks or ex-employers.
To clarify this motion, I will briefly recap the history of the WorkCover scheme. Under the Bannon Labor government, on 12 February 1986 the Workers Rehabilitation and Compensation Bill 1986 was introduced in the House of Assembly by Labor minister Frank Blevins (Parliamentary Debates, 12 February 1986). The purpose of this bill was to revamp the workers compensation scheme such that it became a no-fault compensation scheme which emphasised rehabilitation and return to work. It did not abolish the right of common law for injured workers.
The resultant WorkCover model was the culmination of findings arising from the 1978 Byrne inquiry, with a Workers Rehabilitation and Compensation Board for South Australia, the key to rapid rehabilitation and equitable compensation for those injured at work, which took place in the Dunstan era. The Byrne report was handed down in 1980 under the Tonkin government, but lay dormant for a few years until the Bannon government turned its attention to the report's findings. By 1982 the New Directions conference re-ignited the push for a better and fairer system for workers' rehabilitation and compensation to ensure that injured workers would not have to spend years fighting it out against lawyers and insurance companies in the courts whilst their claims for compensation were being stalled and thwarted.
It was envisaged that the new model would deliver fair and proper access to rehabilitation and, ultimately, enable injured workers to promptly continue on with their work life. I am advised that the difficulties in getting a new scheme up and running largely surrounded the ALP being lobbied by unions which were concerned about injured workers' rights to common law being undermined, whilst publicly there were problems within the business sector on the issues of the levies, which would be owing to be paid, and the impact this would have on businesses. At the time, Victoria also had a similar system with cost blowouts.
In 1986 the Hon. Ian Gilfillan, Australian Democrats member of the Legislative Council, played a pivotal role in what was a marathon debate on the WorkCover scheme, having brokered a deal that would be acceptable to all parties for an improved and safer model than previously tabled. However, that may as well have been a lifetime ago, because since then Labor, Liberal and even the Democrats have appeared to turn a blind eye to the real cause of the monumental dysfunction within the WorkCover Corporation organisation, so much so that prior to 1992 section 54(1)(a) of the Workers Rehabilitation and Compensation Act 1986 allowed limited damages to be claimed under common law for non-economic loss or solatium; that is, compensation where a sum of money is awarded to make up for loss or inconvenience. However, damages for any other liability, such as medical costs or loss of wages associated with workplace injury, were provided for under the Workers Rehabilitation and Compensation Act 1986.
After 1992, common law for non-economic loss or solatium was eventually abolished. Now injured workers have no redress for punitive damages caused by workplace bullying or harassment, wrongful legal tactics or courtroom manoeuvrings used by employers to obstruct the workers' claims. Meanwhile, the no-fault clause has been interpreted as applying only to the employer, who can never be found to be at fault no matter what, whilst the injured workers are always suspected of being at fault. I will demonstrate this particular situation later in my speech.
Only three days after the ALP state executive in May 1997 had endorsed calls by a WorkCover Whistleblowers Support Action Group motion for a full investigation into allegations of corruption by the WorkCover board and its executives, the then opposition leader—now our Premier, Mike Rann—backed down, with the ALP state secretary—now Minister for Health, John Hill—quoted as saying:
The executive has been contacted by an officer of the corporation expressing concern that the resolution carried by the ALP state executive reflects adversely upon its officers' reputation and conduct.
At that time, Mike Rann's office issued a press release supporting the calls for a royal commission-style inquiry into WorkCover. We can only wonder why there was a backflip on that particular decision made, and we can also assume that the call for a royal commission-style inquiry into WorkCover could not possibly have gone ahead and been publicly announced unless there was enough evidence to support the fact that there may be corrupt behaviour and conduct occurring. The Blacks Law Dictionary definition of 'corruption' is as follows:
The act done with an intent to give some advantage inconsistent with official duty and the rights of others. The act of an official or fiduciary person who unlawfully or wrongfully uses his station or character to procure some benefit for himself or another person contrary to duty and the rights of others.
If something before us looks like a duck, walks like a duck, quacks and smells like a duck, it is a pretty safe bet that it is a duck. How many horror stories do we really need to hear about injured workers being abused by the system before we all sit up, take notice and correct and remedy the circumstances? Injured workers tell me that until around 1997 the then journalist for The Advertiser, Mr Michael Foster, a highly skilled, hard-working and dedicated young man courageously wrote countless WorkCover horror stories and regularly exposed the maltreatment of injured workers caught up in the WorkCover system.
Unfortunately, since his appointment as a Liberal Party media adviser soon thereafter, no stories of that calibre on the plight of injured workers have emerged or been reported in The Advertiser. Injured workers suspect that there is some level of collusion with the major parties to ensure that nothing will be done to make corporate executives and the WorkCover board accountable.
Since 1997, media stories have only reported on WorkCover's ever-growing unfunded liability and little more; human interest or personal stories have been lost and now only stories of injured workers convicted of fraud, contempt or other charges are what we see. However, these stories (such as in the case of Mr Jeff Thompson and Mr Markham Moore-McQuillan, for example) warrant much closer public scrutiny if we are to truly understand why WorkCover is now in the horrific financial position that is being reported.
Indeed, high-profile Australian whistleblower and associate professor of the Department of Finance at the University of Melbourne, Dr Kim Sawyer, has long advocated for the introduction of false claims legislation similar to that used in the United States. Dr Sawyer has spoken extensively on the correlation between dishonest or corrupt organisational cultures and the invariably adverse impact that these cultures have on the fiscal bottom line.
A recent case at hand was highlighted on Monday 29 October in The Australian which reported that Victoria's Police Union had spent more than $4 million in legal fees in the previous 12 months defending corrupt officers. In fact, it reported an operating loss of $1.19 million in 2006‑07 after spending $4.18 million funding the legal battles of officers facing corruption and misconduct charges. It further reports that the amount spent on legal fees was more than double the $1.9 million spent in the previous 12 months and four times what the union spent in 2004-05. The financial loss, compared with the $720,000 profit in the previous year, is expected to re-ignite debate within the association about the way decisions are made about which officers facing criminal charges will have their legal fees paid.
I suspect that clear and direct links can be drawn from this example of an organisation struggling to stay afloat financially with the manner in which the WorkCover Corporation has been conducting its business for more than two decades. In my address on the independent commission against crime and corruption bill in this place on 27 September 2007, I made cursory reference to a matter involving Angela Morgan and her right to uncover corruption by senior executive officers of WorkCover Corporation, who she alleges had set out to silence her public interest disclosures by assisting a private defamation suit against her. To recap, Ms Angela Morgan is an injured worker who was successfully sued for defamation by a senior WorkCover auditor, after she had revealed WorkCover fraud by the senior auditor's wife.
As events unfolded, Ms Morgan came to believe that the senior auditor was aware of his wife's fraudulent activities, and not merely as a bystander. It did not take long for the corporation's executive to rapidly become aware of what the implications of Ms Morgan's allegations would be to the reputation of the WorkCover Corporation. That is when Ms Morgan claims the corporation closed ranks to protect its own and to persecute and destroy her and her son in the process. Her son (Sean) later committed suicide for reasons, she suggests, that were closely linked to her own persecution.
The corporation breached its obligations and Ms Morgan's rights to confidentiality and protection. Amongst other laws, the corporation breached section 26 of the Freedom of Information Act, section 110 and section 112 of the Workers Rehabilitation and Compensation Act, and the entire Whistleblowers Protection Act 1993. These breaches by the corporation, however, are the tip of the iceberg. Once the executives became acutely aware of their unlawful conduct, rather than set out to make it right they redoubled their efforts to conceal their illegal activity.
What makes this case so scandalous is proven through written correspondence by WorkCover executives showing their acute awareness of their own grossly unlawful conduct. However, this did not deter them from knowingly continuing to conceal their wrongdoing from Ms Morgan, the state Ombudsman and the courts, with the clear intention of obstructing justice for Ms Morgan, concealing evidence of corporate negligence, malfeasance and corruption, and actively misleading the courts, often with judicial complicity in this conduct by the corporation.
To date, Ms Morgan has paid out in excess of $55,000, plus interest, to the senior auditor for the privilege of helping South Australians detect fraudulent WorkCover claims. She has spent her life savings defending herself against defamatory and malicious allegations by the corporation and its officers ever since. Make no mistake, the correspondence that I have seen is the smoking gun that vindicates Ms Morgan's allegations.
In the summation of one of these memos, the corporation confesses that it will have a problem on its hands if Ms Morgan complains to the Ombudsman. The corporation's handling of her matters were clumsy and compounded at each step. Lew Owens did release Ms Morgan's letter, which was a statement to the person that she accused of corrupt behaviour. Fraud had never investigated or reported on Ms Morgan's allegations as stated to the Ombudsman's office.
Assurances to Ms Morgan about her confidentiality had been breached. Ms Morgan's personal and confidential details were leaked on multiple occasions to and by various parties, and the corporation's failure to discover all documents relevant to the defamation matter were crucial to the corporation's victory in court and Ms Morgan's subsequent finding of guilt.
I stress that these are notes taken from an internal memo of WorkCover which were obtained through FOI requests. It is quite damning to know that it is not only in Ms Morgan's case that there have been breaches of confidentiality and documents passed on to employers who were having claims made against them, but there is a pattern of this occurring. There is ample proof in a number of other cases (which I will cite) that this is quite a common practice in order to continue the litigious nature of the WorkCover Corporation.
On 13 December 1996 Fred Morris, Chief Adviser Legislation, wrote to the chairman of WorkCover Corporation effectively to confess that the corporation was deeply concerned that Ms Morgan would seek to contact her local member, Ms Robyn Geraghty MP, who would raise these issues. The corporation was concerned that injured worker advocate groups were asking questions about why the suspected fraud by the spouse of a senior WorkCover auditor was not being investigated. There was a reluctance on the part of the fraud department to allow for a proper investigation of Ms Mallard's claim.
The corporation believed the Ombudsman's investigation of the release by Lew Owens of Ms Morgan's letter would vindicate Mr Owens's actions, and Mr Mallard's response to the allegations by Ms Morgan required further investigation by the corporation, but not until after the Ombudsman's investigation was concluded.
This correspondence raises many questions, not the least of which are: why was the corporation so sure Lew Owens would be vindicated by the Ombudsman before any findings were handed down? Why would the corporation investigate Mr Mallard only after the Ombudsman had cleared Lew Owens if Lew Owens had acted illegally? Why would the Ombudsman not make known such findings but choose to turn a blind eye, given that he has royal commission powers? Why, if Ms Morgan suspected that documents had been forged, did the Ombudsman not address this concern when it was before him, and why did the Ombudsman fail to pursue Ms Morgan's FOI request vigorously at the time?
By 1997 the corporation breathed a sigh of relief, knowing that Ms Morgan's ability to expose and sue the corporation had not been realised much sooner, but this would not stop it from incapacitating her attempts to expose it over the next decade. In 1997 it may not have had the benefit of hindsight, but since then its malfeasance has been evident, even to itself. If this conduct does not constitute corruption then we have to ask ourselves what does.
It is abundantly clear that over and over again the corporation saw the Morgan matter as one needing not resolution but, rather, management, presumably until it could wear her down, for her scandalous allegations. Indeed, these comments were made by Judge Olsson in the Supreme Court before striking the matter out. What is scandalous is that corruption of this kind cannot be exposed.
In 2000, when Ms Morgan set out to sue the WorkCover corporation for disclosing her confidential personal details to the senior auditor and his wife for their personal defamation suit, it was aided and abetted by two of the most senior executives of the corporation. Once becoming aware of the gravity of their indiscretions and appalling mishandling of the entire case, the corporation did not sit down to negotiate a quiet way out of its humiliating mess. It did not set out to apologise or settle the dispute with Ms Morgan as amicably as possible but instead became ever more determined to use the courts to crush her financially and morally, at taxpayers' expense.
In total, Ms Morgan spent over 134 days in court in just one action alone, Morgan v WorkCover Corporation, in the District Court of South Australia for almost seven years, with more than another seven actions, only to have her affidavit struck out by Master Norman on the grounds that the allegations contained in the affidavit would scandalise the corporation. That was the finding. They could not let this go forward, because it would scandalise the corporation. It was not that she was proven to be lying or that the information contained in the affidavit was false, but that she would simply scandalise the corporation.
She was seeking, among other things, that the CEO be imprisoned for tampering with documents and concealing evidence after waiting five years for discovery of documents. Of course, her allegations do and should create a scandal surrounding the manner in which the corporation behaves in all the South Australian courtrooms and jurisdictions, let alone with injured workers who rely upon the corporation's good faith to conduct its business legally, ethically and with a conscience.
The following is another fairly typical example of the treatment meted out to injured workers. In March 1993 an employee was dismissed by a prominent non-government church agency following disclosure of her employers' misappropriation of $90,000 of public funds and a consistent failure to address serious shortcomings in service and safety standards.
A short time following the worker's dismissal a client had died after being burnt in hot bath water. The agency had previously been warned of the difficult and dangerous situation which existed for staff when supervising residents of this facility, but nothing was done. Meanwhile, minutes of staff meetings at which these issues had been discussed would never come to light. During a coronial inquiry, a lack of funds was blamed for the inaction.
Prior to her suspension the worker had endured 18 months of persistent harassment by her employer related to these disclosures and had sought the assistance of the WorkCover Corporation through her lodgement of a work related stress claim. WorkCover's response was to enter into a process of effective collusion with the employer by systematically avoiding the investigation and management of the case, despite an assessment of the corporation's own resident psychiatrist affirming the work related nature of the stress condition.
The worker would many years later discover the true extent of that collusion after the WorkCover Corporation and the employer entered into an arrangement whereby the corporation would unlawfully supply the employer with the transcript of proceedings and the worker's evidence under oath at no cost, in exchange for the employer's legal representative, Ward and Partners, conducting the workplace investigations and providing the corporation with written witnesses' testimony of the workplace colleagues.
In practice, the employer's lawyers approached the manager for a witness statement, but not before first supplying him with the worker's transcript of evidence detailing her account of events central to the dispute and, accordingly, enabling the manager to construct his evidence around hers. Then, in a blatant move to verbal workplace witnesses using the manager's signed statement, the lawyers proceeded to interview key personnel by first showing them in writing what their manager would be stating under oath and effectively informing the workers, 'This is what your boss is going to say; what are you going to say?'
In a clear case of witness tampering, if ever there was one, WorkCover unlawfully delegated to the employer its own statutory powers of investigation, thus denying the worker access to any independent workplace investigation and evaluation of her claim. Concurrently to this, employees at the workplace were threatened with legal action and instant dismissal if they were discovered communicating with the injured worker. This was accompanied by the wide dissemination by the church-based employer of two highly defamatory pieces of correspondence against the worker.
When the matter of fraudulent witness statements being used to stitch up a case against the injured worker was raised with MMI Insurance's claims manager, Mr Steve Park, he initially undertook to sack the legal firm, Piper Alderman, in question. Instead, he later wrote on 3 July 1997 to the worker to assert that verballing of witnesses is a 'common and accepted practice in the industry' and that 'it is not a practice confined to just legal providers'. What possible truth, much less justice, could have emerged in any courtroom for this worker who maintains that this not only happened in her case but goes on in all other cases where WorkCover is involved? This is not just hearsay, because there are court transcripts and there are documents that prove that all of this actually occurred.
The corporation had conveniently allowed the employer's lawyers to taint and contaminate the nature of the evidence that would otherwise have been available to corroborate the worker's allegations by verballing workplace staff and most likely justified the acceptance of a legitimate claim. Unlike the employer, however, the worker was denied the opportunity of having her own witnesses present at any proceedings before they had given their evidence.
During evidence given under oath in 1993, and despite the fabrication of witness statements (which even the witnesses would later say they had not given to the employer's lawyers, Ward and Partners), the employer had falsely maintained that reasonable attempts were made by the managers to discipline, counsel and warn the worker of alleged poor performance throughout her period of employment, but by 1994 the worker won on an appeal, which questioned the truthfulness of the employer's evidence and which was deemed to be 'circumstantial and largely based on hearsay'.
However, in 1995 under cross-examination the responsible manager conceded that in fact there had never been any disciplinary counselling or warning proceedings issued against the worker during her employment. In spite of this critical confession, the worker lost the second round of the appeal before the Workers Compensation Appeal Tribunal. It would be later discovered that the judge had been made aware of the scheme critical nature of the worker's claim prior to the worker appearing before her.
Throughout years of litigation, contact between the worker and WorkCover concerning the case largely had been restricted to review forums where strategies of demoralisation and marginalisation effectively were used against the worker, including the practice of delaying and protracting her legal case through endless postponements, cancellations and adjournments of review hearings to delay any favourable outcome for the employee. Meanwhile, vital legal precedents were emerging within the system to retrospectively help scuttle her claims against the employer and the corporation.
Amongst other things, during the worker's second round of appeals before a review officer and the WorkCover Appeal Tribunal the worker had been refused the right to call her witnesses, including a witness who had falsely been implicated as an informant against the worker. On discovering the worker's predicament, the witness agreed to substantiate the worker's allegations of perjury by key WorkCover witnesses, but was ambushed on the day of her review and presented with affidavits minutes before being forced to cross-examine surprise witnesses.
The worker had been refused the right to have the matter properly resolved at review, which was fraudulently and prematurely terminated, had the legal burden of proof shifted away from the corporation and the employer, and was forced to prove her eligibility and entitlements that were self evident, as neither the corporation nor the employer kept nor disclosed crucial written documents relating to the workplace dispute, such as duty statements, supervision notes, review files, meeting minutes and newsletters. All these records were conveniently lost or destroyed.
She had been forced to appeal a decision, which resulted in a large quantity of original documents mysteriously vanishing off the review file—documents that were crucial to corroborating the worker's own evidence under oath, and a review and appeal, which the worker had to win outright for this reason alone. She was advised that her claim had been rejected in 1993 using precedents created in 1994—one year after her case was actually heard. How can you set a precedent in 1994 and make a determination on a case tried in 1993?
It was informed that perjury by the corporation was in fact an 'inaccuracy stated without malice and therefore was not unreasonable'. She was referred to as a 'nutter' by the Workers Compensation Tribunal arbitration officer after having challenged his jurisdiction to hear her claim, as the tribunal had ruled in another case, that WorkCover officials are immune from any civil or criminal liability under section 122(4) of the Workers Rehabilitation and Compensation Act. It could therefore not hear matters in which it was alleged that the corporation had acted illegally, improperly or maliciously, as it could bring down only one finding—against the worker.
Most alarming was the fact that the worker discovered many years into her claim that the tribunal judge was advised that her stress claim had been deemed Scheme Critical as it held a 'significant financial or legislative impact', and that her case could never have succeeded on merit. WorkCover and the worker's employer took full advantage of their access to publicly funded legal representation in order to wear down the resolve of this whistleblower through the misuse of the WorkCover legislation and their power over the judicial process.
The practice behind the Scheme Critical list was exposed on the SBS Insight program of 15 June 2000 entitled 'Bullies at Work'. Like something straight out of John Grisham's The Rainmaker, the scheme critical list is a hit list, issued by WorkCover and widely circulated to the judiciary across all courts, including the Supreme Court and the High Court and tribunals, as well as agents and legal representatives for the corporation. The cases that appear on the list are those deemed to hold significant financial or legislative impact for the WorkCover Corporation. In other words, they are cases which uniquely represent all other claims on which the corporation does not want to have to pay out.
So this Scheme Critical List contains names, the type of injury and the classification, and they do not want to set precedents for settling those kinds of cases: that is what the Scheme Critical List is all about. So, any claimants who come under that scheme critical list classification have absolutely no way of getting their pay-out or any sort of resolution of the problem.
No-one in this place needs the benefit of hindsight, as I expect the corporation would use to defend itself, that the compilation of such a list is illegal because it clearly identifies individuals by name and claim type as being tagged for obstruction. Moreover, the notion that a claim can ever be rejected or obstructed on the grounds that it holds a 'significant financial or legislative impact' is contrary to any notion of social justice or statutory duty and obligation as it attaches to any claim two additional, secret criteria, which:
· are not made known to the worker;
· cannot be challenged, as the Workers Rehabilitation Compensation Act does not provide for any appeal on such criteria or grounds; and
· cannot be independently evaluated, as such criteria are not governed by any publicly-known guidelines; that is, how might one demonstrate that a claim does not hold significant financial or legislative impact?
Imagine going to Centrelink and applying for a pension only to be told that, although you meet all their legislative criteria, you will not be receiving your entitlements—and then be unable to challenge the decision or even know how such a decision was ever reached. It is unconscionable to think that that could occur and it is unconscionable to think that, because a particular worker in Centrelink may not like 55 or 65 year olds, they could actually refuse your rightful claim to a pension. That is exactly how this Scheme Critical List is applied.
Workers on this hit list, and their legal representatives, are never informed of the scheme critical nature of their claims and are often left to flounder in a justice system which is not permitted to rule according to the merits of their claim. Instead, for the most part judges are forced to rule in WorkCover's favour. If that does not happen, then the corporation usually appeals the decision (as its own memos show and as I stated earlier) and uses the indemnity issue as leverage with which to win. This is because courts and tribunals have routinely sought to have workers indemnified from wearing the costs of an appeal (supposedly to protect workers from legal costs).
However, WorkCover has seized on this practice to ensure that only appeals advantageous to its objectives proceed by refusing all others indemnity from legal costs. Thus, merit-worthy appeals are stopped dead in their tracks—especially those where the corporation's interpretation of legislation is the matter being challenged. This practice also ensures that the corporation can set its own legal precedents in an absolute win-win for the corporation and in a forum that it has already stitched to its advantage.
My information is that hundreds of injured workers' names have been deemed scheme critical over the years—and I have actually seen this list and its title for myself, so there is absolutely no doubt that the scheme critical list exists—and the claimants are being forced to unwittingly play out their workplace issues in courtrooms that never had any intention of delivering them a fair hearing, much less an outcome.
In 1999 the worker referred to earlier won leave to appeal to the Full Supreme Court on many other outstanding matters, which suggests that the worker had a legitimate and live claim against the corporation and employers all along. However, despite many years of futile and expensive litigation, leave to appeal was not pursued by the worker due to the existence of the Scheme Critical List and the likely adverse impact that would have had on a claim ever succeeding before any South Australian court.
This injured worker was told by WorkCover that hers was an isolated case. I expect the board and its executives would also claim that their practices have significantly improved over time, but we can see that this probably has not occurred, that the misconduct and dysfunction continues unabated and unchecked, because of the ever-flourishing unfunded liability—as was the case with the example of the Victorian police.
The WorkCover blog website has countless stories from injured workers, and I will read just a few of those which highlight the desperation of those trapped within this despicable and degrading system. Under the title 'Medical Certificates' the blog says:
Has anybody experienced case managers or rehabilitation consultants who ignore what your medical certificates state? Or try and entice your doctors to even change them to suit their needs?—Abused.
Under 'Duty of care' it says:
It is not simply that one has been on the system for an amount of time, it's what happens to that worker when they are on the system. Some of the information I have in my 107 file does suggest they have no intention to rehabilitate me. These providers are employed because they are well aware of their duties and therefore have taken on the responsibility.—Had enough.
A posting by 'When Enough is not Enough' under '107B' says:
If you think you got all of your documents under 107B...try again...carry out an FOI application simply asking for 'all records relating to me'. Then carry out an internal review. After that's done check all of your documents and if you suspect some are missing or some are withheld ask for an external review with the Ombudsman...just to be thorough. If there are any external service providers involved like rehab providers, private investigators, lawyers for WorkCover you should also get all of their documents. Then you get a real picture of what's going on...
If your rehab consultant acts a bit funny towards you, your case manager is being an arsehole [excuse the language] and your weekly income cheques are irregular or do not arrive on time and you find something like this in your file that is addressed to a supervisor or someone in WorkCover then you know that they are now on your back...'This worker does not want a redemption. What do you suggest? Intensive rehabilitation? Surveillance? What else?'
You were wondering about the what else...well all those rumours you read about verballing the witnesses and investigators showing doctors video evidence and asking them to comment without verifying whether any of the information is true...the rumours obviously are not made up.
Under 'How many more reviews', 'Anonymous' asked:
How many more reviews do they need? While reviews are being undertaken they keep up the 'same old same old' ripping off the workers which was NOT the intention of the original legislation or intent of parliament.
Forum:
I am willing to attend any forum to have my file made public.
I am willing to sit with the review panel and have my file scrutinised.
I am willing to starve myself in protest until such action is done.
For the people that know me well, these comments will not surprise them. For people who would like to dare, be prepared.
That means people who would dare to get caught up in this WorkCover system. This is probably the most heart wrenching of all. It is entitled 'A prayer for WorkCover staff and EML employees,' and it states:
I pray for all workers at WorkCover and all the case managers at EML.
I pray that what goes around comes around.
I pray that your children and family be blessed with the same suffering and trauma I have experienced while on WorkCover.
I pray that when you take the cup to drink that you think of the blood that has been spilled of injured workers.
And when you eat the bread, you think of the bodies and injuries that have been suffered of the injured workers.
And when you sit in silence think again of how you have failed to help the injured who are oppressed and unable to fight, for they are the ones who are needy in this world and who the system is failing.
I pray that those you treat unfairly in your daily work will forgive you some day, because sure as day is day and night is night there are many that know not how to forgive after being so unfairly treated for such a long time, I being one of them.
I pray that you and your children end up on WorkCover and be traumatised by poor claims management year in year out.
May they never receive their due entitlements. And when your children want to end their suffering and redeem their entitlements I hope that their claims are settled unfairly with not a care for their injury and suffering.
I pray for Bruce and the board for they know not what they do.
I pray that they may have more understanding and insight into the lives and suffering of injured workers trapped on a system that cares little for the human lives it consumes.
I pray that the board fix the system without regard to their own interests but in the interests of the employers and the injured workers.
Amen.
PS: I am not praying for a miracle, that's why I did not pray that the minister will do anything.
Posted by The Vicar.
As tragic as they are for the parties involved, these stories do not compare with that of another injured worker, Mr Markham Moore-McQuillan, whose case I wish to highlight. He is another claimant on the scheme critical list whose case demonstrates just how very special the treatment is for those whose names have appeared on the list over the years.
Mr Moore-McQuillan was a highly skilled, highly employable and well-paid shop manager and master instructor working for the Dive Shop. He worked in both roles concurrently. Mr Moore-McQuillan first lodged his WorkCover claim in 1990 for what the corporation claimed was a simple knee strain in the left knee after a fall. However, specialist reports showed that both knees had ligament damage; cartilage; cruciate ligament tears, both kneecaps had been dislocated; muscle splits; dislocated toes; damaged hips; chips in the femur and tibia; and associated injuries.
This one action would result in no fewer than 95 separate court actions over 17 years involving the dispute between Mr Moore-McQuillan, the agents, WorkCover Corporation, the police and other authorities in almost every jurisdiction in the state. He would even serve gaol time, and he is still facing a significant gaol sentence for contempt of court as we speak. After 17 years of being in this system and not getting any outcome, I am surprised that it is only contempt of court that he has been charged with.
Mr Moore-McQuillan calculates that no fewer than 1,000 court appearances, not including his appearance before eight High Court matters, with an average of 3.5 days per week, have been spent in a South Australian court or tribunal since it all started back in 1990. Most of this court time has been spent blocking or challenging Mr Moore-McQuillan's entitlement to discovery and FOI access to documents that would corroborate his account of events and defend him from malicious restraining orders and charges of fraud—convictions which still stand against him to this day and which were acquired by WorkCover through deception.
Once his claim was deemed scheme critical, the corporation appears to have taken extreme measures to avoid its liabilities to Mr Moore-McQuillan and deny him his claim. This started when WorkCover began by underpaying Mr Moore-McQuillan in August 1991. When he protested, it began to stitch him up for fraud, including levelling outrageous restraining orders and having him under constant surveillance. Mr Moore-McQuillan would like to know, as I would, whether anyone from WorkCover can produce figures for his wage calculations and explain why he has been continually underpaid since 1990 from his lawful entitlement pursuant to section 4(7) of the Worker's Compensation Act 1986, which provides:
4—Average weekly earnings
(7) Notwithstanding the foregoing provisions of this section—
(a) where a disabled worker's remuneration was, at the relevant date, covered by an award or industrial agreement, the worker's average weekly earnings shall not be less than the weekly wage to which the worker was then entitled under the award or industrial agreement;
(b) if, but for this paragraph, the average weekly earnings of a worker (not being a self-employed worker) would be less than the prescribed amount, the average weekly earnings shall be fixed at the prescribed amount;
(c) the average weekly earnings of a worker shall in no case be fixed at more than twice stage average weekly earnings.
This would have entitled Mr Moore-McQuillan to $1,800 per week (as it was back in 1990). However, WorkCover only ever paid him $625 per week. It is easy to see why the corporation would have set out knowingly to deny Mr Moore-McQuillan the remaining balance of $1,100 per week from the outset and why his claim would have become so scheme critical. However, in trying to save itself $2,200 a fortnight, it has cost taxpayers many times more and all but destroyed Mr Moore-McQuillan's professional career and personal standing and reputation in the community. It has forced him into bankruptcy and denied him an otherwise fruitful existence. However, he still has to live with his injuries, having had no genuine rehabilitation or return to work.
WorkCover should show clearly where it has complied with section 4 and section 4(7), but it has consistently failed to do so, and no judge in this state has ever compelled the corporation to do exactly that. Why would any judge require the corporation to be called to account when the case is scheme critical and the judges hearing his matters have known it to be so all along? It was stated in 2001 at the Adelaide Magistrates Court that Mr Moore McQuillan's case alone has represented 10 per cent of the Lawson and Downs (now Lawson and Smith) legal firm's annual turnover, so it would be conservative to say that Mr Moore McQuillan's case has cost the taxpayer at least $1 million annually.
To highlight the monumental stupidity of WorkCover's conduct of this case, in September 1995 at the Workers Compensation Tribunal, Stan Coulter for the WorkCover Corporation admitted that he had not been honest with Mr Moore McQuillan that he would review and investigate all his outstanding legal matters and grievances. Mr Coulter was subsequently commended in a memo from Lew Owens (then CEO), congratulating him on a good job well done in stonewalling the resolution of Mr Moore McQuillan's claims for his lawful entitlements.
Mr Moore McQuillan states that the WorkCover lawyer for Gunn and Davey confessed to him in front of Judge McCusker at the tribunal, 'You're innocent in the workers compensation tribunal but you are guilty in the Adelaide Magistrates Court.' And no wonder, when the courts have given the corporation absolute immunity from any wrongful, corrupt or illegal activity by ruling that section 122(4) gives it absolute indemnity. The subsection reads:
122—Offences
(4) Subsection (1) does not render the Corporation, a member of the staff of the Corporation, or any person acting on behalf of the Corporation, liable to prosecution for any acts or omission related to the administration or enforcement of this Act.
Another injured worker, Mr Phil Moir, has undertaken considerable research scrutinising WorkCover's figures and expenditure. He has had many letters to the editor published questioning the truthfulness of WorkCover's reporting and, indeed, the minimisation of its unfunded liability. When his initial claim was lodged, WorkCover summarily rejected it, forcing him to appeal. WorkCover then sent him to a WorkCover specialist who fully supported the claim, yet WorkCover again rejected it.
In the chambers conciliation conference the Deputy President asked WorkCover representatives whether they had even read the report from their own specialist and, if so, what they were doing there. The Deputy President apologetically advised Mr Moir to do everything he could to not go on WorkCover because, in his experience, the system tends to do more harm than good to those trapped in it. WorkCover ignored the Deputy President's instruction and proceeded to court. It lost on every point yet, after costs were paid, Mr Moir was still $25,000 out of pocket.
Despite section 26 of the act mandating that it must enter into a rehabilitation program, it has refused to do so for 11 months, with an unfounded demand that, unless Mr Moir's GP changes her diagnosis about his capacity for work, it would not support any request for his rehabilitation. Mr Moir has requested the right to enter into a rehabilitation program on 22 occasions since December 2006 but on each occasion his request has been rejected. He has asked his rehabilitation provider, DePoi Consulting (whose principal sits as a member on the WorkCover board) to allow him to obtain a blank copy of the proposal so that he could prepare his own program to submit, but EML has instructed her not to support his request.
Mr Moir also proposed numerous rehabilitation and retraining activities, including skills training, academic courses, volunteer work in the office of a member of the upper house (not my office, by the way, I will clarify that) and to participate in workers compensation conferences. Because they do not like his attempts at rehabilitating himself, the corporation has simply ignored him and refused to respond.
On three occasions in the past three months EML case management staff have been objectively caught out misleading investigations conducted by the so-called independent complaints resolution unit yet, despite the evidence proving they have lied, there is no right of redress for Mr Moir. Mr Moir writes:
WorkCover has complete contempt for injured workers and, due to poor management decisions, the scheme in South Australia is facing near billion dollar debt whilst charging the highest levies in Australia. Their management and agents are getting more desperate and workers are now being treated in a manner that borders on inhumane.
Highly regarded psychologist Dr Darryl Cross has recently spoken on FiveAA and slammed the system as being intimidatory, neurosis-inducing and one that treats workers with suspicion and contempt. Of more concern, he stated that there are an increasing number of medical specialists that simply refuse to deal with a patient if they are on WorkCover. A former investigator also said on FiveAA that he was told to use compromising evidence of a woman's infidelity to coerce her to drop her injured shoulder claim.
The real tragedy, however, lies in the suicide rate of injured workers trapped on benefits. In society at large the incidence of suicide is 14 per 100,000. Approximately 3,700 workers go onto benefits annually, and in the past five years 20 have suicided. That represents an accepted rate of 80 per 100,000, tragically, eight times greater than societal averages.
In 2000 the average redemption payment offered to permanently incapacitated workers was 3.5 years average weekly earnings. In 2006-07 that payment averaged 11 months average weekly earnings. Despite Michael Wright saying on radio that redemption payments should be fair, it is obvious they have become manifestly inadequate. This in turn leaves injured workers with no choice but to remain on benefits, in turn pushing the future liability past the $2 billion level. All we ask is that WorkCover comply with the written intent of the legislation and stop treating injured workers like criminals.
In another letter Mr Moir wrote:
You may be interested to know that I have capitulated to the pressure and bullying tactics of WorkCover and have accepted a token redemption that goes against the best advice of my lawyers, professional financial planners and of course the stated intent of the legislation.
Sadly, as a victim of this callous scheme, one is so very alone and when people in positions of authority are so willing to accept the tactics and lies perpetrated by WorkCover rather than look at the objective facts and hold them accountable, I felt I had little choice but to walk away, else risk becoming just another sad statistic hidden in the spin.
In a touch of irony, the lying sods at EML had the audacity to tender a rehabilitation plan that I submitted for its consideration in May—the one it refused to sign—as evidence that it actually had me on a rehabilitation plan. Besides contemptuously misleading the tribunal, it was this final act of cowardice that made me realise that the truth has no bearing on the outcome and those charged with managing the scheme have no conscience.
The Workers Compensation Tribunal conciliator, and even the lawyer for WorkCover, were genuinely apologetic and accepting that the scheme was being managed in an illogical, callous and unfair manner, and they suggested that the only people in South Australia who are not aware of the impact that the policies are having on those genuinely injured workers are the board and the management of WorkCover.
In the end, I felt I had no option but to give up before their actions completely destroyed me. I only pray that I can return to some semblance of health before the money runs out. Mr Clayton, this is not a good outcome for my family. This is not a good outcome for WorkCover or EML. It is simply a travesty that the scheme has become so bereft of conscience that its agent destroys people's lives in its attempts to save money, regardless of the consequence. I do wish you well with your review—
he says—
and sincerely hope that you do not forget that behind the numbers are real people with real problems being managed by people of questionable motives and ethic.
The WorkCover Corporation operates like a cartel, defended by most of South Australia's legal fraternity which sits somewhere on its payroll and on whose business they depend, so much so that the true WorkCover model has been captured by vested business and other interest groups. South Australia had been set back to the litigation processes which it faced pre-1986, fighting rogue employers, multinational insurance companies and corporations. The only difference now is that it has no protection under common law and no independent sources of representation to whom it can complain.
What we need now is some serious bloodletting, very much as Sir Robert Torrens was able to achieve in the mid-1800s. At the time the process of property transfers was overseen by a greedy legal profession and corrupt judges whose conduct caused many people to lose their property by the time the sale or transfer was completed. Often, this was a futile endeavour as documents of title could not be traced, and it is believed that over 5,000 existing claims to land were actually of doubtful validity.
Although Sir Robert Torrens gave us the Torrens title system, which is used across the world today, this was not before he took on the legal profession in relation to real property transfers. That cartel was not broken until Torrens was able to ensure the removal of a particular judge. Today, it is a greedy corporation that oversees the process of rehabilitation and compensation to injured workers, with many of its greatest stakeholders sitting on the board. The only difference today, as compared to pre-1986, is that there is a greater order and structure to how lawful entitlements of injured workers can be ripped off.
It is the small business sector and injured workers who are paying for our inaction. Every member in this place, and in the other place, should be working to seek a solution that brings back justice for injured workers, as was intended by the original bill in 1986. If we are not committed, we should explain why it cannot be done to allow people the choice of whether they would ever access WorkCover at all because, inevitably, so many are far worse off for the experience.
Debate adjourned on motion of the Hon. J. Gazzola.
Posted by Emarrassment to the officers of workcover at 4:27 PM, 15/11/2007
WorkCover coverage
IT seems the Spin Doctors at WorkCover can't take a trick these days. Julia Davidson participated in a Lateline
story into WorkCover and it was stated that "there are currently 36,000 in receipt of WorkCover payments".
This was incorrect and was yet another ploy by WorkCover to use the biggest numbers it can, regardless of the merit in doing so.
Lateline was challenged on the inaccuracy of the story and has now edited the online transcript to state that WorkCover received 36,000 claims last year and that there are NOT 36,000 on benefits as WorkCover advised Lateline.
Only 10 per cent of claims made to WorkCover ever go onto receive income maintenance and there only 7000 people currently receive income maintenance payments. So why does WorkCover carry a $2 billion debt?
Phil Moir Adelaide
Transcript
Rann's Chile Adventure
Broadcast: 13/04/2007
Reporter: Daniela Ritorto
IAN HENSCHKE: There's been plenty of sniping over Premier Mike Rann's tour of Chile last week, when he visited the world's biggest open cut mine and got a glimpse of just how big a hole will be created in South Australia by the Olympic Dam expansion. But did the trip create anything more than photo opportunities? State political reporter, Daniela Ritorto, travelled with the Premier and filed this report.
DANIELA RITORTO: It was Mike Rann's hard hat tour of Chile. There were big holes to peer into, cute kids to meet and greet and a bit of up close and personal diplomacy. This is Chile's mines minister. She's a lot better looking than her South Australian counterpart.
But was there any hard value for taxpayers in the state's emerging mining industry?
PHIL SUTHERLAND, PEPINNINI MINERALS: It's very important that our politicians and our leaders see first hand the mining projects, the large ones in particular.
MARTIN HAMILTON-SMITH, OPPOSITION LEADER: I'm surprised at how quickly this Government has sought to get into bed with big business.
DANIELA RITORTO: Until BHP Billiton starts digging, this is arguably the only way to see how Olympic Dam will look if the company goes ahead with its $5 billion expansion.
MIKE RANN, PREMIER: I think it was really important for me to come here because in fact the BHP Billiton division that covers Roxby Downs actually reports to Santiago in Chile.
ROGER HIGGINS, BHP BILLITON BASE MEDALS: It's been a good opportunity we don't often get with both ourselves and the Premier's team away from their offices. We get a chance to talk about things we normally wouldn't get to talk about.
DANIELA RITORTO: This is Escondida, the world's largest open-cut mine. It is 3200m above sea level, almost a kilometre deep and 3 kilometres wide.
MIKE RANN: This is awesome in its scale. It puts what we are going to get in South Australia into perspective.
DANIELA RITORTO: As Mr Rann waxed lyrical about the Olympic Dam expansion, Roger Higgins kept the company line that the project is still not a certainty.
ROGER HIGGINS: If we had all of the answers and knew all of the answers today, we would be right in there building it today.
DANIELA RITORTO: Political commentator Greg McCarthy says the Opposition's claim that this was little more than a public relations stunt is too cynical, but he does have reservations about the Premier putting so much faith in a global mining company and tying up taxpayer dollars in a proposed desalination plant near Whyalla, which will provide water for the mine expansion and Spencer Gulf towns.
GREG McCARTHY: If he gets the sums wrong, if BHP Billiton are more interested in the shareholders than the South Australian public, then, I think he could find the trip was probably far worse than he thought.
DANIELA RITORTO: That's where Bruce Carter comes in. One of the state's highest profile financial fixers was on the tour as the head of the Olympic Dam expansion taskforce.
BRUCE CARTER, OLYMPIC DAM EXPANSION TASKFORCE: The taskforce has two roles the first is to ensure that the interrelationship between BHP and the Government, and this transcends across to all areas of Government, is a smooth affair and an efficient process.
DANIELA RITORTO: The other is to help South Australian companies get the majority of the contracts. But, with the Government concentrating efforts on Olympic Dam, some argue there is a risk others will miss out. The industry says the expansion will benefit the entire minerals sector, so long as the Government doesn't forget about the small to medium players.
PHIL SUTHERLAND: Those companies do not have the wherewithal of a global mining house. They will be looking to the State and Federal Government to support those projects in infrastructure.
DANIELA RITORTO: That's where the Chileans have South Australia beat - purpose built pipelines, road and rail link Escondida and the new Spence mine, further north, to the Port of Colosso. In turn, Colosso provides the desalinated water which feeds Escondida.
PHIL SUTHERLAND: Our ports are just totally inadequate. We need to develop the ports to the north of the state, telecommunications are woefully inadequate, same with our road and rail networks.
DANIELA RITORTO: But, despite the world class infrastructure, Antofagasta is no Roxby Downs. Olympic Dam has made Roxby Downs one of the country's richest postcodes, with services second to none. Antofagasta remains dominated by crumbling villages and slum villages, but the locals say first impressions are misleading; life is getting better.
JAVIER MUNOZ, MINERA ESCONDIDA FOUNDATION: I born here, so there is a big difference between before Escondida and after Escondida.
DANIELA RITORTO: Away from the mines and meetings, the Premier and journalists found time to take in a soccer match Antofagasta versus Santiago. To pinch an AFL cliché, to the Chileans, this is much more than a game. But, then again, that's exactly what Bruce Carter says about the Roxby Downs expansion and the Government's job in making it happen.
BRUCE CARTER: It impacts on every part of Government, and part of our role is to ensure that those responses give every best support for all of that infrastructure to occur.
DANIELA RITORTO: So you are confident?
BRUCE CARTER: Well, it's not a matter of being confident; we have got to make it happen.
SOUTH Australia's Law Society has added its influential voice to calls for a permanent anti-corruption commission in the state.
The society's governing council recently passed a resolution giving in-principle support to the creation of a similar body to the Independent Commission Against Corruption in NSW.
Its move substantially raises the pressure on the Rann Government, which has consistently rejected the need for a crime and corruption fighting organisation.
The Law Society represents almost 3000 solicitors in the state.
Society president Grant Feary said the group would call on the state Government to reconsider its position.
"In a modern state with a booming economy we think it's important that there's a body like that to make sure the proper processes are gone through," he said. "Without something like an ICAC, who knows what is happening?"
Mr Feary said it would be naive to think that there were no corruption problems, and that South Australia was "lily-white". He said with billions of dollars predicted to flow into the state from the mining boom, it should not want to be considered the new "wild west".
Former auditor-general Ken McPherson, Director of Public Prosecutions Stephen Pallaras, the Victims' Rights Commissioner and interstate anti-corruption fighters have all publicly declared the need for a corruption-fighting body in South Australia. NSW, Queensland and Western Australia have permanent anti-corruption bodies. Two bills to establish a commission in South Australia are before the state's upper house. The Liberal Opposition will introduce another in the new year.
South Australian Premier Mike Rann has constantly rejected the need for a corruption commission on the basis of cost and an assertion that it would be a "carnival of lawyers".
The Government argues that the auditor-general, ombudsman, Police Complaints Authority and its anti-corruption branch have the powers to investigate and prosecute corruption cases.
But the Law Society president disagreed. "The usual arguments that are put against an ICAC we didn't think stacked up, really," Mr Feary said. He said the Law Society did not have a view on the detail of a corruption commission for South Australia, though it would not need to be the size of those in other states and the society wanted to participate in the development of any model.
"It should be able to be funded appropriately by the Government without it costing an arm and a leg," he said.
Earlier this month, former Queensland premier Peter Beattie wrote in The Australian that all states needed a watchdog beyond government control to maintain honesty and integrity in public administration.
He said such bodies were the only long-term safeguard against political and police corruption and that all states would eventually have to follow those states that already had them.
Worker compo cuts
GREG KELTON, STATE EDITOR
February 18, 2008 12:15am
EXCLUSIVE: WORKCOVER payouts to injured workers are about to be cut by the Rann Government.
The move comes more than a year after the controversial cuts were recommended by the group's board.
A report into WorkCover by financial expert Alan Clayton is before Cabinet and about to be released, with business and economic experts saying cutting benefits is the only way to reduce WorkCover's rapidly growing liabilities.
It is understood the report recommends reducing payments, with a senior Labor source saying unions will be told "they will just have to eat it".
The liabilities are now at $849 million but there is widespread speculation they could top $1 billion by the end of the year.
The Government wants legislation to reform the current scheme before Parliament by the middle of this year.
Business and economic experts have told The Advertiser there are few options for the Government other than reducing benefits.
Business and the Opposition say the review has taken "far too long" and Liberal industrial relations spokesman Duncan McFetridge said yesterday the Government was "tearing itself apart" over the recommendations.
He also is accusing the Government of delaying the decision during a federal election year in which workers' rights was a dominant issue.
At the same time, another report, prepared for the University of SA by compensation expert and economist Dr Kevin Purse, has found moves aimed at saving WorkCover money by outsourcing compensation claims management have failed.
WorkCover compo to be cut1 ``````''''''The Government is under extreme pressure from employers, and the WorkCover board, to bring in changes to lower premiums, rein in administration expenses and reduce employer levy rates to between 2.25 and 2.75 per cent.
In November, 2006, the board recommended cutting benefits but the Government ordered another review by financial experts Alan Clayton and John Walsh.
Industrial Relations Minister Michael Wright told Parliament last week the unfunded liabilities of WorkCover were now $849 million – up from $694 million in mid-2006.
Dr Purse's report says outsourcing claims management was supposed to save 15 per cent a year in costs. He says that while the number of claims fell by nearly 13,000 between 1995 and 2007, administration costs blew out by $75 million.
His report also says WorkCover has been hurt by a high turnover of claims managers, a "conspicuous deterioration" in the corporation's financial performance, and the level of service to injured workers.
Business SA director of employer advocacy programs David Frith said SA's scheme was the worst performing in the country.
A South Australian Centre for Economic Studies report prepared in December shows the cost of workers' compensation to the state's employers rose by 5.4 per cent in 2006-07 compared with a fall in every other state and territory. The report said SA had risen "to the top of the league ladder" for compensation costs.
Mr Frith said injured workers were not returning to work soon enough because current legislation did not provide the incentives needed to get injured workers rehabilitated.
Business SA has recommended incremental reductions of weekly benefits to employees, cutting off benefit payments at 104 weeks based on an employee's capacity to work, reducing the maximum weekly benefit payment to 125 per cent of average weekly earnings, reducing an employer's obligation to provide re-employment from 12 to six months and limit employer liability for significant disabilities not related to employment.
"We expect the Clayton-Walsh report to contain some of these recommendations," Mr Frith said.
The WorkCover board had proposed cuts to workers' entitlements such as reducing weekly income maintenance payments, capping entitlements to medical expenses, limiting solicitors' capacity to charge injured workers and ceasing maintenance until disputes were resolved with any arrears paid to the worker where the dispute was resolved in favour of the worker.
Mr Wright said yesterday the Clayton report would be given thorough consideration but the Government was absolutely committed to providing a scheme which struck the right balance between the rights and needs of workers, employers and the WorkCover corporation.
He said any changes to the scheme would be aimed at getting people better and back to work faster while at the same time reducing costs to employers.
Article from: The Advertiser
JOANNA VAUGHAN POLITICAL REPORTER
February 19, 2008 12:00am
STATE unions chief Janet Giles has quit WorkCover's board to fight against cuts to payouts for injured workers.
Her dramatic resignation yesterday morning was triggered by an Advertiser report revealing the planned cuts.
Ms Giles, SA Unions secretary, said her position on WorkCover's board was untenable because of a "conflict" with her role fighting for workers' rights.
In a warning to the State Government, Ms Giles threatened a repeat of the union movement's anti-WorkChoices campaign if cuts to WorkCover payouts were introduced.
Ms Giles singled out a comment in yesterday's Advertiser by a senior Labor source who said, in relation to the cuts, unions will be told "they will just have to eat it".
"I think this morning's newspaper really was the tipping point in my decision," she said.
". . .We would be running a public and political campaign similar to what we did in the (anti-WorkChoices) 'Your Rights At Work' campaign, to make sure working families know the recommendations could seriously affect them and their families.
"We call upon state Labor to remember their core values. We will be disappointed if now we are forced to campaign against our state Labor Government to protect the rights of injured workers but, if we need to, we will."
The Advertiser yesterday reported that WorkCover payments were about to be cut, more than a year after the controversial move was recommended by the statutory authority's board.
A report into WorkCover by financial expert Alan Clayton is before Cabinet and business and economic experts say the only way to reduce WorkCover's growing liabilities - which have reached $849 million - is to cut payments.
It is understood the Government wants legislation to reform the scheme to go before Parliament this year.
Premier Mike Rann yesterday said no final decision had been made on reforms to the workers' compensation and rehabilitation scheme.
But he stressed the Government was committed to a "WorkCover system which is both fair to the workers and fair to employers".
"Given that we haven't seen the report and given that Cabinet hasn't seen it, it's a bit hard to pre-empt," Mr Rann said.
Ms Giles, who had been a board member for almost six years, said it was "no secret" that union representatives had dissented from last year's recommendation to cut payouts.
She said the WorkCover board had recommended compensation payouts for a worker on a minimum gross weekly wage of $522.15 be cut immediately to $496 as soon as they were injured. This would then be cut to $391.60 if they had not recovered after 13 weeks.
"Now the Government is considering a report which could well contain similar options and I need to be in a position where I can put workers first and defend their rights without the limitations imposed by being on the board," she said.
Business SA employer advocacy and programs director David Frith said the SA compensation scheme was the worst performing in the country and injured workers were given little incentive to return to work quickly.
Opposition industrial relations spokesman Duncan McFetridge said compensation payouts did not need to be cut but WorkCover had to be better managed.
"Cutting workers entitlements will only punish the injured workers. The Government has to get rid of this culture of fear in the whole WorkCover sector," he said.
WORKERS REHABILITATION AND COMPENSATION (SCHEME REVIEW) AMENDMENT BILL
The Hon. M.J. WRIGHT (Lee—Minister for Industrial Relations, Minister for Finance, Minister for Government Enterprises, Minister for Recreation, Sport and Racing) (16:04): Obtained leave and introduced a bill for an act to amend the Workers Rehabilitation and Compensation Act 1986. Read a first time.
The Hon. M.J. WRIGHT (Lee—Minister for Industrial Relations, Minister for Finance, Minister for Government Enterprises, Minister for Recreation, Sport and Racing) (16:05): I move:
That this bill be now read a second time.
Today I am introducing a bill to amend the Workers Rehabilitation and Compensation Act 1986. The bill contains a large number of amendments directed at various aspects of the design of South Australia's Workers Compensation system. However, the overall objectives of the bill are simple. There are three:
·First, the bill aims to align South Australia's scheme nationally while ensuring the state scheme is fair for injured workers particularly in terms of the critical elements of income maintenance, medical payments and non economic loss.
·Second, the bill amends the scheme in a way that is anticipated to restore its financial health and allow it to go on providing benefits at this level.
·Third, it is expected that the improved financial outlook for the scheme will also be able to be used to the benefit of the cost competitiveness of the state's economy.
The bill is the outcome of the government's decision last March to commission an independent review of the South Australian Workers Rehabilitation and Compensation Scheme. The decision to conduct the review was made against a background of a deterioration in the state of WorkCover's compensation funds.
During 2006-07, the WorkCover scheme compensation funds experienced a loss of $149 million, following a $42 million loss in 2005-06. As at 30 June, WorkCover's liabilities exceeded its assets by $843.5 million.
The board of WorkCover has sought to address the deterioration in its financial circumstances in several ways. The most important to date is the decision to engage Employers Mutual as sole claims agent from 1 July 2006, replacing the four previous claim managers.
The board has also examined the design of the current scheme. In November 2006, the board submitted a package of proposals for changing the design of the scheme to the government. This precipitated the government's subsequent decision to hold the review. The consultation processes supporting the review have been extensive with 76 written submissions received.
There are a number of factors which have been identified by WorkCover and by the review as contributors to the financial deterioration of the scheme. However, underlying these factors is one common element—a shift in culture away from injury management and return to work towards a culture of compensation. Reversing this culture is the key to restoring the financial health of the scheme while ensuring that injured workers have the best possible chance of resuming productive working lives.
Regrettably, there are, and will be, cases where the degree of impairment is so severe as to prevent early return to work or return to work at all. In these cases, the South Australian scheme has traditionally been more generous than the scheme of any other state in Australia.
South Australia will go on providing the most generous income maintenance benefits in Australia. Workers who do not have a work capacity will continue to receive weekly payments until retirement.
These payments will be made at 100 per cent of the workers pre-injury average weekly earnings for 13 weeks and at 80 per cent thereafter. This 80 per cent is higher than the rates paid in New South Wales and Victoria, the two jurisdictions with schemes most comparable with our own. New South Wales does go down to 90 per cent, but the figure that they pay is something like about, from memory, $364.
Injured workers will also be eligible to claim compensation for non-economic loss under an entitlement that is now the highest maximum payment for such loss of any state scheme. Workers will also continue to be able to receive compensation for medical benefits beyond 12 months cessation of income maintenance as the proposal to cap these benefits after that period has been rejected by the review and also by the government.
Another benefit for injured workers is that the bill adopts the successful New South Wales model of provisional liability. Under this provision, injured workers will be able to avoid delays in payments by accepting up to 13 weeks of income replacement and a maximum of $5,000 of medical expenses. The experience in New South Wales is that this form of intervention assists both return to work and the efficiency of the dispute resolution process.
These reforms have as their twin objectives encouraging return to work and providing equitable and generous support for those whose impairment prevents them from resuming work at an early date.
The review has also identified other measures for achieving the shift in culture that is required to secure early return to work. There are two that are particularly important. The first is changes to work capacity reviews.
This review is a statutory process which requires the assessment of an injured worker's capacity for some form of work. It can lead to a cessation of benefits or reduction of benefits if the worker has not returned to work to their maximum capacity.
The review argues that the current procedure for this assessment in South Australia has 'become opaque and tortuous' and 'interpreted in a very restricted and technical manner in a number of decisions of the tribunal.' Difficulties also appear to arise in relation to the 'job matching' requirements whereby WorkCover must establish that a particular injured worker is able to enter into particular types of employment.
The review has supported WorkCover's proposal to apply the Victorian legislative model which limits the obligations of the compensating authority to establishing whether or not the worker has a current work capacity, irrespective of the availability of work for which the worker has been determined as capable of performing. WorkCover proposed that this model be applied after 104 weeks. The review is recommending 130 weeks, consistent with current Victorian practice, and that has been adopted by the government.
The second major measure for achieving early return to work is the amendment to significantly restrict access to redemptions. The historical, financial and comparative analyses contained in the review report all point to the central significance that the payment of lump sum redemptions has assumed—as a method for closing claims.
Individual redemptions can appear to benefit the financial position of the scheme in circumstances where they redeem a claim for less than the claim's estimated liability. However, the net impact of the significant use of redemptions has been the creation of a 'lump sum culture' in which the negotiation and settlement of pay-outs for claims often replaces a primary focus on achieving return to work outcomes. This bill amends the act to implement these and a number of other proposals that are consistent with the government's policy objectives.
In closing, there are three points I would like to make. First, the government has accepted without qualification the full set of recommendations provided by Australia's pre-eminent expert in this area. Secondly, an independent actuarial assessment has indicated that the review's recommendations:
... satisfy the r eview t erms of r eference provided initiatives are undertaken and applied as recommended, that is , allowing a reduction in the average levy rate to the range of 2.25 per cent to 2.75 per cent from 1 July 2009, and an extinguishing of the unfunded li ability over five to six years.
Thirdly, I draw the attention of the house to Mr Clayton's conclusion that:
If the full range of recommendations set out in this r eport were to be implemented, South Australia will retain its position as the fairest workers' compensation scheme in the country. For workers who do not have a work capacity, weekly payment benefits continue to the age of retirement. The benefit arrangements for non-economic loss will be modernised and, particularly for the most seriously injured workers, will be the most generous in Australia. The wider structural arrangements are aimed to position South Australia as a leading jurisdiction in terms of a 'work health' model of workers' compensation. The strong accountability arrangements, including the Code of Workers' Rights and the South Australia WorkCover Ombudsman will provide a level of protection that places South Australi a among the international best.
I commend the bill to members.
Explanation of Clauses
Part 1—Preliminary
1—Short title
This clause is formal.
2—Commencement
Operation of the measure will commence on a day to be fixed by proclamation. Section 7(5) of the Acts Interpretation Act 1915 will not apply to the amending Act (in case it is necessary to delay the commencement of certain amendments beyond the second anniversary of assent).
3—Amendment provisions
This clause is formal.
Part 2—Amendment of Workers Rehabilitation and Compensation Act 1986
4—Amendment of section 3—Interpretation
This clause inserts new definitions required for the purposes of the measure. Some existing definitions are amended. The following are examples of new defined terms:
A worker's current work capacity is a present inability arising from a compensable disability such that he or she is not able to return to the employment in which he or she was engaged when the disability occurred but is able to return to work in suitable employment. No current work capacity, in relation to a worker, means a present inability arising from a compensable disability such that a worker is unable to return to work.
New subsection (10) explains that total incapacity for work is an incapacity where the worker has no current work capacity, while partial incapacity for work is an incapacity where the worker has a current work capacity.
Suitable employment means employment for which a worker is suited, whether or not the work is available, having regard to the following:
· the nature of the worker's incapacity and previous employment;
· the worker's age, education, skills and work experience;
· the worker's place of residence;
· medical information relating to the worker that is reasonably available, including in any medical certificate or report;
· if any rehabilitation programs are being provided to or for the worker.
· the worker's rehabilitation and return to work plan, if any;
Proposed subsection (12) explains the meaning of a reference in the Act to suitable employment provided by a worker's employer.
The definition of exempt employer is deleted as that term is to be replaced with self insured employer. The opportunity has also been taken to correct a number of obsolete references and to provide clarification in relation to existing terms. For example, proposed subsection (11) explains the meaning of legal personal representative in relation to a deceased worker for the purposes of the Act. A person is the legal personal representative of a deceased worker if the person is entitled to administer the deceased's estate or authorised by the Tribunal to act as the deceased's representative.
New subsection (13) provides that a reference in a provision of the Act to a designated form is a reference to a form designated for the purposes of the provision by the Minister.
5—Substitution of section 4
Section 4 of the Act provides for the determination of a worker's average weekly earnings. The section currently provides in subsection (1) that the average weekly earnings of a disabled worker are the average amount that the worker could reasonably be expected to have earned for a week's work if the worker had not been disabled.
This clause substitutes a new section 4 under which the average weekly earnings of a disabled worker is the average weekly amount that the worker earned during the period of 12 months preceding the date on which the disability occurred in relevant employment.
Relevant employment is constituted by employment with the employer from whose employment the disability arose. If the worker was, at the time of the occurrence of the disability, employed by 2 or more employers, relevant employment is constituted by employment with each such employer. An amount paid while a worker was on annual, sick or other leave is to be taken to be earnings.
The proposed section includes a number of additional provisions relevant to determining a disabled worker's average weekly earnings. These provisions deal with, for example, the average weekly earnings of a worker who is a director and employee of a body corporate, the extent to which overtime is to be taken into account and matters to be disregarded in determining average weekly earnings (such as superannuation contributions payable by an employer and prescribed allowances).
6—Amendment of section 7—Advisory Committee
This amendment is consequential on the change in terminology from 'exempt employer' to 'self-insured employer'.
7—Amendment of section 28A—Rehabilitation and return to work plans
Under section 28A, a rehabilitation and return to work plan is to be prepared for a worker who is receiving income maintenance and is likely to be incapacitated for work by a compensable disability for more than 3 months but has some prospect of returning to work. The first amendment made by this clause reduces then length of the relevant period of incapacity to 13 weeks.
The second amendment is consequential on the insertion of section 28D by clause 8. The Corporation will be required to consult a relevant rehabilitation and return to work co-ordinator when preparing a plan.
8—Insertion of section 28D
This clause inserts new section 28D, which will require employers to appoint rehabilitation and return to work co-ordinators. The co-ordinator is to be an employee of the employer and based in South Australia. The functions of the co-ordinator are as follows:
· to assist workers suffering from compensable disabilities, where prudent and practicable, to remain at or return to work as soon as possible after the occurrence of the disability;
· to assist with liaising with the Corporation in the preparation and implementation of a rehabilitation and return to work plan for a disabled worker;
· to liaise with any persons involved in the rehabilitation of, or the provision of medical services to, workers;
· to monitor the progress of a disabled worker's capacity to return to work;
· to take steps to as far as practicable prevent the occurrence of a secondary disability when a worker returns to work;
· to perform other functions prescribed by the regulations.
9—Amendment of section 30—Compensability of disabilities
As a consequence of this amendment, a worker's employment will include attendance at a place for the purposes of a rehabilitation and return to work plan.
10—Amendment of section 32—Compensation for medical expenses
Under section 32, a worker is entitled to be compensated for certain medical and related costs in accordance with scales of charges prescribed by regulation. As a consequence of these amendments, the scales will be published by the Minister rather than prescribed by regulation.
11—Insertion of section 32A
This clause inserts a new section. Section 32A provides that a worker may apply to the Corporation for the payment of costs within the ambit of section 32 (ie, medical and related expenses) before his or her claim for compensation is determined. The Corporation may determine that it is reasonable to accept provisional liability for the payment of compensation under section 32 and make payments under section 32A.
The maximum amount payable with respect to a particular disability is $5 , 000 (indexed). The acceptance of provisional liability under section 32A does not constitute an admission of liability, and a payment under the section with respect to a particular cost discharges any liability that the Corporation may have with respect to the cost under section 32. Section 32A also provides that the Corporation may determine not to make a payment with respect to a particular disability despite having previously done so.
The following decisions under section 32A are not reviewable:
· a decision to accept or not to accept liability;
· a decision to make or not to make a payment;
· a decision to exercise or not to exercise a right of recovery.
12—Amendment of section 33—Transportation for initial treatment
This amendment provides for the indexing of an amount prescribed by regulation under section 33(4), which relates to recovery by an employer of the costs of transportation provided for an injured worker.
13—Amendment of section 34—Compensation for property damage
This amendment provides for the indexing of an amount prescribed by regulation under section 34(1), which relates to compensation for a disabled worker for damage to therapeutic appliances, clothes, personal effects or tools of trade.
14—Substitution of section 35
This clause replaces section 35 with a number of new provisions relating to compensation by way of income maintenance.
35—Preliminary
New section 35 provides that a worker who suffers a compensable disability that results in incapacity for work is entitled to weekly payments in respect of the disability in accordance with Part 4 Division 4.
Weekly payments are not payable under Division 4 in respect of a period of incapacity for work falling after the date on which the worker reaches retirement age. If, however, a worker who is within 2 years of retirement age, or above retirement age, becomes incapacitated for work while still in employment, weekly payments are payable for a period of incapacity falling within 2 years after the commencement of the incapacity.
A worker is not entitled to receive, in respect of 2 or more disabilities, weekly payments in excess of the worker's notional weekly earnings. Where a liability to make weekly payments is redeemed, the worker will be taken to be receiving the weekly payments that would have been payable is there had been no redemption.
The section provides that a reference in Division 4 to a worker making every reasonable effort to return to work in suitable employment includes any reasonable period during which—
· the worker is waiting for a response to a request for suitable employment made by the worker and received by the employer; and
· if the employer's response is that suitable employment may or will be provided at some time, the worker is waiting for suitable employment to commence; and
· if the employer's response is that suitable employment cannot be provided at some time, the worker is waiting for a response to requests for suitable employment from other employers; and
· the worker is waiting for the commencement of a rehabilitation and return to work plan, after approval has been given.
A worker is not to be treated as making every reasonable effort to return to work in suitable employment if the worker—
· has refused to have an assessment made of the his or her employment prospects; or
· has refused or failed to take all reasonably necessary steps to obtain suitable employment; or
· has refused or failed to accept an offer of suitable employment from a person; or
· has refused or failed to participate in a rehabilitation program or a rehabilitation and return to work plan.
For the purposes of Division 4, the first entitlement period is an aggregate period not exceeding 13 weeks in respect of which a worker has an incapacity for work and is entitled to compensation because of the incapacity.
The second entitlement period is an aggregate period not exceeding 117 weeks in respect of which a worker has an incapacity for work and is entitled to compensation because of the incapacity.
35A—Weekly payments over designated periods
Section 35A sets out the weekly payment entitlements of a worker in respect of a compensable disability while incapacitated for work.
During the first entitlement period, the worker is entitled, for any period during which he or she has no current work capacity, to weekly payments equal to his or her notional weekly earnings. For any period during which the worker has a current work capacity, he or she is entitled to weekly payments equal to the difference between his or her notional weekly earnings and designated weekly earnings (see below).
During the second entitlement period, the worker is entitled, for any period during which he or she has no current work capacity, to weekly payments equal to 80 per cent of his or her notional weekly earnings. For any period during which the worker has a current work capacity, he or she is entitled to weekly payments equal to 80 per cent of the difference between his or her notional weekly earnings and designated weekly earnings.
For the purposes of section 35A, the designated weekly earnings of a worker will be taken to be the current weekly earnings of the worker in employment or the weekly earnings the Corporation determines that the worker could earn from time to time in employment, whichever is the greater. The 'weekly earnings that the worker could earn from time to time' may be in the worker's employment previous to the disability or in suitable employment, that the Corporation determines that the worker is capable of performing despite the disability. In determining a worker's 'designated weekly earnings', certain prescribed benefits are not to be taken into account.
Designated weekly earnings will not be taken to be the weekly earnings that a worker could earn from time to time if—
· the employer has failed to provide the worker with suitable employment and the worker is making every reasonable effort to return to work in suitable employment; or
· the worker is participating in a rehabilitation and return to work plan which reasonably prevents the worker from returning to employment.
35B—Weekly payments after expiry of designated periods—no work capacity
Under section 35B(1), which is to operate subject to section 35C and other relevant provisions, a worker's entitlement to weekly payments will cease at the end of the second entitlement period (unless brought to an end at an earlier time) unless the worker is assessed by the Corporation as having no current work capacity and likely to continue indefinitely to have no current work capacity.
If the worker is so assessed by the Corporation, he or she is entitled to weekly payments while incapacitated for work in respect of a particular disability equal to 80 per cent of his or her notional weekly earnings as though the second entitlement period were continuing.
The Corporation is entitled to conduct a review of the assessment of a worker at any time. A review must be conducted as often as may be reasonably necessary, being at least once in every 2 years.
A worker who, immediately before the end of a second entitlement period, is in receipt of payments under paragraph (a) of section 35A(2) (that is, he or she has no current work capacity), is entitled to continue to receive weekly payments at the rate prescribed by that paragraph (80 per cent of notional weekly earnings) unless or until the Corporation has assessed whether he or she falls within the category of a worker who may be considered as having no current work capacity and likely to continue indefinitely to have no current work capacity. The Corporation must not discontinue weekly payments to such a worker until he or she has been given at least 13 weeks notice in writing of the proposed discontinuance. The notice must not be given unless or until the assessment has been undertaken.
The provisions mentioned in the above paragraph do not apply if the Corporation discontinues the worker's weekly payments under section 36 or suspends payments under some other provision.
If the Corporation is satisfied, following a review of an assessment of a worker, that the worker has a current work capacity, it may discontinue weekly payments.
35C—Weekly payments after expiry of designated periods—current work capacity
Under section 35C, but subject to the Act, a worker who is, or has been, entitled to weekly payments under section 35A(2)(b) or 35B, may apply to the Corporation for a determination that his or her entitlement to weekly payments does not cease at the end of the second entitlement period under section 35A or at the expiry of an entitlement under section 35B.
If the Corporation is satisfied that a worker who has made such an application is in employment and that because of the compensable disability, he or she is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work that would increase his or her current weekly earnings, the Corporation may determine that the worker's entitlement to weekly payments does not cease.
The worker's entitlement where such a determination has been made will be (subject to other relevant provisions) 80 per cent of the difference between the worker's notional weekly earnings and his or her current weekly earnings.
15—Amendment of section 36—Discontinuance of weekly payments
Section 36 deals with circumstances in which a worker's weekly payments can be discontinued. The first amendment made by this clause adds the following to the list of such circumstances in subsection (1):
· that the worker's entitlement to weekly payments has ceased because of the passage of time;
· that the worker's entitlement to weekly payments has ceased because of the occurrence of some other event or the making of some other decision or determination that, under another provision of the Act, brings the entitlement to weekly payments to an end, or the discontinuance of weekly payments is otherwise authorised or required under another provision of the Act.
Section 36(1a) lists circumstances in which a worker breaches the obligation of mutuality. As a consequence of the second amendment made by this clause, a worker breaches the obligation of mutuality if he or she refuses or fails to participate in an assessment of his or her capacity, rehabilitation progress or future employment prospects.
Section 36(2) lists circumstances in which weekly payments to a worker who has suffered a compensable disability may be reduced. This clause adds the following to the list:
· the worker has recommenced work as an employee or as a self employed contractor, or the worker has had an increase in remuneration as an employee or a self employed contractor;
· the worker's entitlements to weekly payments reduces because of the passage of time;
the worker's entitlement to weekly payments reduces because of the occurrence of some other event or the making of some other decision or determination that, under another provision of the Act, is expressed to result in a reduction to an entitlement to weekly payments or the reduction of weekly payments is otherwise authorised or required under another provision of the Act.
Section 36(3a) currently provides that notice of a decision to discontinue or reduce weekly payments under the section must (depending on the ground for the decision) be given at least 21 days before the decision is to take effect. The provision as amended by this clause will provide that the notice is to be given at least the prescribed number of days, rather than 21 days, before the decision is to take effect. The prescribed number of days is as follows:
· if the worker has been receiving weekly payments under the Division (or Division 7A) for a period that is less than 13 weeks, or for 2 or more periods that aggregate less than 13 weeks—7 days;
· if the worker has been receiving weekly payments for a period or periods above the period or periods mentioned above but for less than 52 weeks, or for 2 or more periods that aggregate less than 52 weeks—14 days;
· in any other case—28 days.
The amendments also add the following to the list of decisions to reduce weekly payments where the required notice must be given:
· a decision to reduce weekly payments on account of the end of the first entitlement period under section 35A;
· a decision to discontinue weekly payments on account of the end of the second entitlement period under section 35A;
· a decision to discontinue weekly payments on account of—
· a review by the Corporation under section 35B(3); or
· a decision of the Corporation under section 35C(5)(a).
Section 36(4) currently provides that if a worker lodges a notice of dispute in relation to a decision of the Corporation to discontinue or reduce weekly payments within 1 month of receiving notice of the decision, the operation of the decision will be suspended and may be further suspended by the Workers Compensation Tribunal from time to time to allow a reasonable opportunity for resolution of the dispute. That subsection is to be deleted. New subsection (4) will provide that, so long as there has been compliance with subsection (3a) (ie, notice has been given as required), a discontinuance or reduction of weekly payments under section 36 is to take effect in accordance with the Corporation's notice of the determination. The effect of a decision to discontinue or reduce weekly payments will not be affected by the worker lodging a notice of dispute.
New subsection (5a) sets out the amount a worker is entitled to be paid where a dispute is resolved in favour of the worker at the reconsideration, conciliation or arbitration state, or on appeal:
· in the case of resolution on a reconsideration—the worker is entitled to the total amount that, under the terms of the reconsideration, should have been paid to the worker between the date that the disputed decision took effect and the date that the decision, as varied under the reconsideration, takes effect;
· in the case of a resolution at the conciliation stage—the worker is entitled to be paid any amount payable under the terms of the relevant settlement;
· in the case of a determination at arbitration or on appeal—the worker is entitled to be paid the amount that, under the terms of the arbitration or according to the outcome of the appeal, would have constituted the worker's entitlements under the Act had the weekly payments not been discontinued or reduced.
New section 36(14) provides that a worker is required to take reasonable steps to attend any appointment reasonably required for the purposes of the Division. A worker is also required to take reasonable steps to comply with any requirement reasonably required under a rehabilitation program or a rehabilitation and return to work plan. A failure to comply with these requirements constitutes a ground for the discontinuance of payments under section 36. This provision is expressed to be for the avoidance of doubt.
16—Insertion of section 37
This clause inserts a new section. Under the proposed section, the Corporation may review the calculation of the average weekly earnings of a worker for the purpose of making an adjustment due to a change in a component of the worker's remuneration used to determine average weekly earnings or a change in the equipment or facilities provided or made available to the worker. This review may be undertaken on the Corporation's own initiative or at the request of a worker.
The Corporation is required to give a worker notice of a proposed review under the section and also to invite the worker to make submissions. If the Corporation finds on a review that there has been a change that warrants an adjustment, the Corporation may make the adjustment. The worker may be required by the Corporation to provide relevant information and must be given notice of the Corporation's decision on the review.
17—Amendment of section 38—Review of weekly payments
Section 38 provides for review on the initiative of the Corporation or at the request of a worker of the amount of weekly payments made to the worker. As a consequence of the amendments to section 38 made by this clause, a worker's request for a review must be in a designated manner and a designated form, and notices to the worker under the section must be in a designated form (rather than a prescribed form).
18—Repeal of section 38A
Section 38A, which authorises the discontinuance or reduction of weekly payments because of passage of time, is repealed by this clause.
19—Amendment of section 39—Economic adjustments to weekly payments
Section 39 applies if a worker to whom weekly payments are payable is incapacitated for work, or appears likely to be incapacitated for work, for more than 1 year. The Corporation is required, during the period of incapacity, to review the weekly payments for the purpose of making an adjustment under the section.
Under new subsection (1a), the Corporation will be required to give a worker notice in the designated form before commencing a review. The notice must inform the worker of the proposed review and invite him or her to make written representations.
20—Amendment of section 40—Weekly payments and leave entitlements
Section 40(3) deals with an employer's liability to grant annual leave where a worker has received weekly payments in respect of total incapacity for work over a period of 52 weeks or more. The subsection, as recast and substituted by this clause, provides that if a worker has received weekly payments in respect of total incapacity for work over a period of 52 weeks, whether consecutive or not, the employer's liability to grant annual leave in respect of the period of employment that coincides with that period will be taken to have been satisfied. On the completion of such a period of 52 weeks, another period may be taken to commence for the purposes of the subsection.
21—Amendment of section 41—Absence of worker from Australia
This amendment has the effect of requiring a notice to be in a designated form rather than the form prescribed by regulation.
22—Amendment of section 42—Redemption of liabilities
As a consequence of this amendment to section 42, where a redemption of a liability to make weekly payments is proposed, an agreement for that redemption cannot be made unless 1 or more of the following requirements are satisfied:
· the rate of weekly payments to be redeemed does not exceed $30 (indexed);
· the worker has attained the age of 55 years and the Corporation has determined that he or she has no current work capacity;
· the Tribunal (constituted of a presidential member) has determined, on the basis of a joint application made to the Tribunal by the worker and the Corporation, that the continuation of weekly payments is contrary to the best interests of the worker from a psychological and social perspective.
23—Repeal of Part 4 Division 4B
Division 4B of Part 4, which authorises the Corporation assess the loss of future earning capacity of a worker who has been incapacitated by a compensable disability for more than 2 years, is repealed by this clause.
24—Substitution of section 43
This clause repeals section 43, which provides for lump sum compensation for a worker's non-economic loss, and substitutes a number of new provisions.
43—Lump sum compensation
New section 43 provides that a compensable disability resulting in permanent impairment as assessed in accordance with section 43A gives rise to an entitlement to compensation for non-economic loss by way of a lump sum. The lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.
The prescribed sum is $400 , 00 (indexed). However, if a regulation is made prescribing a greater amount, the prescribed sum is that amount.
Regulations made for this purpose must provide for compensation that at least satisfies the requirements of Schedule 3 (inserted by clause 73) taking into account assessment of whole person impairment.
There is no entitlement under section 43 if the worker's impairment is less than 5 per cent or, in the case of a permanent psychiatric impairment, less than 10 per cent .
Any degree of impairment is to be assessed for the purposes of section 43 in accordance with section 43A.
Compensation will not be payable under section 43 in respect of a worker following his or her death.
43A—Assessment of impairment
Section 43A sets out a scheme for assessing the degree of permanent impairment. An assessment is to be made in accordance with the WorkCover guidelines (to be published by the Minister for the purposes of section 43) and must be made by a legally qualified medical practitioner. The practitioner must also hold a current accreditation issued by the Corporation.
The guidelines are to be published in the Gazette. They may adopt or incorporate the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time. Other requirements and options in relation to the guidelines are listed in section 43A(4). The Minister may amend or substitute the guidelines from time to time but must, before publishing or amending the guidelines, consult with the Australian Medical Association (South Australia) Incorporated and any other prescribed body.
The Corporation is to establish an accreditation team for the purposes of the requirement that assessments be made by medical practitioners holding current accreditations.
An assessment of the degree of impairment resulting from a disability must be made after the disability has stabilised and be based on the worker's current impairment as at the date of the assessment. Under section 43A(9), an assessment must take into account the following principles:
· if a worker presents for assessment in relation to disabilities which occurred on different dates, the impairments are to be assessed chronologically by date of disability;
· impairments from unrelated disabilities or causes are to be disregarded in making an assessment;
· assessments are to comply with any other requirements specified by the WorkCover Guidelines or prescribed by the regulations.
43B—No disadvantage—compensation table
This section applies specified circumstances where a worker is entitled to compensation equal to the amount applying under the table in Schedule 3A (inserted by clause 73) instead of the compensation payable under sections 43 and 43A. Those circumstances are as follows:
· the worker suffers a compensable disability that gives rise to compensation under section 43 or 43A;
· the compensable disability is a loss mentioned in the table;
· the amount of compensation payable under section 43 and section 43A in respect of the disability is less than the amount applying under the table in respect of that disability.
However, if a worker suffers 2 or more disabilities mentioned in the table in Schedule 3A arising from the same trauma, the worker is not entitled in any case to receive compensation under section 43B in excess of $254 , 100 (indexed).
25—Amendment of section 44—Compensation payable on death—weekly payments
Section 44 deals with compensation payable if a worker dies as a result of a work related injury. The section currently sets out the entitlement of certain dependants to a funeral benefit, weekly payments and a lump sum. The section as amended deals only with the entitlement of a spouse, domestic partner or dependent child to weekly payments. Other benefits are detailed in new sections 45A, 45B and 45C (inserted by clause 26).
26—Insertion of sections 45A, 45B and 45C
This clause inserts 3 new sections that detail the lump sum, funeral benefits and counselling services to which a dependent spouse, domestic partner or child is entitled on the death of a worker as a result of a work related injury.
45A—Compensation payable on death—lump sums
For the purposes of this section, a dependent child is a child mainly or partially dependent on the worker's earnings. A dependent partner is a spouse or domestic partner totally dependent on the worker's earnings, while a partially dependent partner is a spouse or domestic partner who is to any extent dependent on the worker's earnings. The prescribed sum is the prescribed sum under section 43.
Under section 45A(4), if a worker dies as a result of a compensable disability, compensation in the form of a lump sum is payable as follows:
· if the worker leaves a dependent partner, or dependent partners, and no dependent child, the amount of compensation is an amount equal to the prescribed sum payable to the dependent partner or, if there is more than 1, in equal shares to the dependent partners;
· if the worker leaves no dependent partner and no dependent children other than an orphan child or orphan children, the amount of compensation is an amount equal to the prescribed sum payable to that orphan child or, if there are 2 or more, in equal shares for those children;
· if the worker leaves a dependent partner, or dependent partners, and 1, and only 1, dependent child, the amount of compensation is—
· an amount equal to 90 per cent of the prescribed sum payable to the dependent partner or, if more than 1, in equal shares to the dependent partners; and
· an amount equal to 10 per cent of the prescribed sum payable to the dependent child;
· if the worker leaves a dependent partner, or dependent partners, and more than 1 and not more than 5 dependent children, the amount of compensation is an amount equal to the prescribed sum payable in the following shares:
· an amount equal to 5 per cent of the prescribed sum payable to each dependent child;
· the balance to the dependent partner or, if more than 1, in equal shares to the dependent partners;
· if the worker leaves a dependent partner, or dependent partners, and more than 5 dependent children, the amount of compensation is an amount equal to the prescribed sum payable in the following shares:
· an amount equal to 75 per cent of the prescribed sum payable to the dependent partner or, if more than 1, in equal shares to the dependent partners;
· an amount equal to 25 per cent of the prescribed sum payable to the dependent children in equal shares;
· if the worker does not leave a dependent partner but leaves a dependent child or dependent children (not taking into account an orphan child or orphan children), the dependent child is, or if more than 1, each of those dependent children are, entitled to the amount of compensation being such share of a sum not exceeding the prescribed sum that the Corporation considers is reasonable and appropriate to the loss to the dependent child or, if more than 1 dependent child, to those dependent children;
· if the worker leaves—
· a partially dependent partner or partially dependent partners; and
· a dependent partner or dependent partners or a dependent child or dependent children or any combination of such,
each of those dependents is entitled to the amount of compensation being such share of a sum not exceeding the prescribed sum that the Corporation considers is reasonable and appropriate to the loss to that dependent;
· if the worker does not leave a dependent partner, dependent child or partially dependent partner but leaves another person who is to an extent dependent on the worker's earnings, the Corporation may, if it considers it to be justified in the circumstances, pay compensation of a sum not exceeding the prescribed sum that the Corporation considers is reasonable and appropriate to the loss to that person (and if the Corporation decides to make a payment of compensation to more than 1 person, the sums paid must not in total exceed the prescribed sum);
· if the worker is under the age of 21 years at the time of the compensable disability and leaves no dependent partner, dependent child or partially dependent partner but, immediately before the disability, was contributing to the maintenance of the home of the members of his or her family, the members of his or her family are taken to be dependents of the worker partly dependent on the worker's earnings.
If a person who is entitled to a payment under section 45A is under the age of 18 years, the payment may, at the determination of the Corporation, be made wholly or partly to a guardian or trustee for the benefit of the person.
The section also provides that compensation is payable, if the Corporation so decides, to a spouse or domestic partner or child of a deceased worker who, although not dependent on the worker at the time of the worker's death, suffers a change of circumstances that may, if the worker had survived, have resulted in the spouse or domestic partner or child becoming dependent on the worker.
45B—Funeral benefit
Where a worker dies because of a compensable disability, a funeral benefit is payable equal to the actual cost of the funeral or the prescribed amount, whichever is the lesser. The funeral benefit is to be paid to the person who conducted the funeral or to a person who has paid, or is liable to pay, the deceased's funeral expenses.
45C—Counselling services
Under this new section, a family member of a worker who has died as a result of a compensable disability is entitled to be compensated for the cost of approved counselling services to assist the family member to deal with issues associated with the death. Family member means a spouse, domestic partner, parent, sibling or child of the worker or of the worker's spouse or domestic partner.
27—Amendment of section 46—Incidence of liability
Section 46 as amended will provide that the Corporation is liable for the compensation that is payable under the Act on account of the occurrence of a compensable disability. Under the section, if a worker is wholly or partially incapacitated for work and is in employment when the incapacity arises, the worker's employer is liable to pay income maintenance for the first 2 weeks of incapacity. Under new subsection (8b), the Corporation will undertake that liability of an employer in respect of a particular disability if the Corporation is satisfied that the employer has complied with its responsibilities under section 52(5) within 2 business days after receipt of the worker's claim.
28—Amendment of section 50—Corporation as insurer of last resort
These amendments are necessary as a consequence of the change in terminology from 'exempt employer' to 'self-insured employer'.
29—Insertion of Part 4 Division 7A
The new Division inserted by this clause provides for the commencement of weekly payments on a provisional basis following the initial notification of a disability.
Division 7A—Special provisions for commencement of weekly payments after initial notification of disability
50A—Interpretation
This section provides definitions of terms used in Division 7A. An initial notification is the notification of a disability that is given to an employer (if the worker is in employment) and the Corporation, in the manner and form required by the Provisional Payment Guidelines, by the worker or by a person acting on behalf of the worker. The Provisional Payment Guidelines are guidelines published by the Minister from time to time in the Gazette for the purposes of the Division.
50B—Commencement of weekly payments following initial notification of disability
This section provides that provisional weekly payments of compensation by the employer or the Corporation are to commence within 7 days after initial notification of a disability by the worker. This requirement does not apply if the Corporation determines that there is a reasonable excuse (under the Provisional Payment Guidelines) for not commencing weekly payments.
50C—Status of payments
The payment of provisional weekly payments of compensation is on the basis of the provisional acceptance of liability for a period of up to 13 weeks determined by the Corporation having regard to the nature of the disability and the period of incapacity. The acceptance of liability on a provisional basis is not an admission of liability by the employer or the Corporation. A provisional payment will be taken to constitute the payment of weekly payments under Division 4.
The employer or the Corporation may decide to discontinue weekly payments under section 50C on a ground set out in the Provisional Payment Guidelines.
50D—Worker to be notified if weekly payments are not commenced
A worker is to be notified if weekly payments are not commenced because of a reasonable excuse under the Provisional Payment Guidelines. The notice is to include details of the excuse.
50E—Notice of commencement of weekly payments
Following the commencement of weekly payments under Division 7A, the employer or the Corporation must notify the worker that weekly payments have commenced on the basis of provisional acceptance of liability .
50F—Obligations of worker
The Corporation may require the worker to provide a medical certificate in addition to other information of a prescribed kind.
50G—Liability to make weekly payments not affected by making of claim
The making of a claim for compensation does not affect a liability to make weekly payments in connection with the acceptance of liability on a provisional basis.
50H—Set-offs and rights of recovery
An amount paid under Division 7A may be set off against a liability to make weekly payments of compensation under Division 4. Further, if an employer or the Corporation makes 1 or more payments under Division 7A and it is subsequently determined that the worker was not entitled to compensation, the employer or the Corporation may, subject to and in accordance with the regulations, recover the amount or amounts paid as a debt from the worker.
50I—Status of decisions
Certain decisions under Division 7A are not subject to review:
· a decision to make a provisional weekly payment of compensation;
· a decision not to make a provisional weekly payment of compensation after it is established that there is a reasonable excuse under the Provisional Payment Guidelines;
· a decision to discontinue weekly payments of compensation under section 50C or 50F;
· a decision to continue or not to continue weekly payments of compensation under section 50G;
· a decision to exercise or not to exercise a right of recovery under section 50H.
30—Amendment of section 51—Duty to give notice of disability
This amendment is necessary as a consequence of the change in terminology from 'exempt employer' to 'self-insured employer'.
31—Amendment of section 52—Claim for compensation
Some of the amendments made by this clause are necessary as a consequence of the change in terminology from 'exempt employer' to 'self-insured employer'. It is also proposed to refer in some provisions to designated forms instead of prescribed forms.
32—Amendment of section 53—Determination of claim
Section 53(7a) details circumstances that constitute an appropriate case for the Corporation to re - determine a claim. As a consequence of the amendment made to that subsection by this clause, the Corporation will be authorised to re - determine a claim where the redetermination is for the purposes of section 4(11) (inserted by clause 5) and is appropriate by reason of the stabilising of a compensable disability.
33—Amendment of section 54—Limitation of employer's liability
These amendments are necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
34—Amendment of section 58A—Reports of return to work etc
This amendment is necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
35—Amendment of section 58B—Employer's duty to provide work or pay wages
Section 58B deals with the duty of the employer of a worker who has been incapacitated for work in consequence of a compensable disability to provide suitable employment for the worker. Proposed new subsection (3) provides that if a worker who has been incapacitated for work in consequence of a compensable disability undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the disability arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation.
36—Amendment of section 60—Self insured employers
Most of the amendments made by this clause are necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
This clause also amends section 60, which provides for the registration of an employer or group of employers as a self-insured employer or as a group of self-insured employers, by inserting a definition of 'related bodies corporate'. Some consequential amendments are also made. Related bodies corporate means—
· in the case of corporations—bodies corporate that are related bodies corporate under section 50 of the Corporations Act 2001 of the Commonwealth;
· in the case of any other kind of bodies corporate—bodies corporate that are associated entities under section 50AAA of the Corporations Act 2001 of the Commonwealth.
New subsection (4a) provides that the Corporation may, at any time, on the application of 2 or more self insured employers, amend the registration of each self-insured employer so as to form a group on the ground that they are now related bodies corporate.
Under subsection (4b) the Corporation may, at any time, on application by a group of self insured employers, amend the registration of the group in order to—
· add another body corporate to the group (on the ground that the body corporate is now a related body corporate); or
· remove a body corporate from the group (on the ground that the body corporate is no longer a related body corporate); or
· amalgamate the registration of 2 or more groups (on the ground that all the bodies corporate are now related bodies corporate); or
· divide the registration of a group into 2 or more new groups (on the ground that the bodies corporate have separated into 2 or more groups of related bodies corporate).
37—Amendment of section 61—The Crown and certain agencies to be self insured employers
38—Amendment of section 62—Applications
The amendments made by these clauses are necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
39—Amendment of section 62A—Ministerial appeal on decisions relating to self insured employers
Section 62A provides a right of appeal to the Minister in respect of certain decisions of the Corporation relating to registration as a self-insured employer or group of self insured employers. As a consequence of these amendments, an employer or group of employers will be able to appeal to the Minister if the Corporation reduces the period of registration of the employer or group as a self insured employer or group of self insured employers.
Under new subsection (2a), if an employer or a group of employers appeals to the Minister against a decision of the Corporation to refuse to renew, or to cancel, the registration of the employer or employers as a self-insured employer or group of self insured employers, the Corporation may extend or renew the registration of the employer or employers for a period of up to 3 months (pending resolution of the appeal).
40—Substitution of heading to Part 5 Division 2
This amendment is necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
41—Amendment of section 63—Delegation to self insured employer
Section 63(1) lists the powers and discretions of the Corporation that are delegated to self-insured employers. This clause amends the subsection adding references to powers and discretions under a number of additional sections of the Act.
New subsection (5a) clarifies that if the Corporation would, but for a delegation under the section, be required to take any action or do any thing in relation to a worker of a self-insured employer. responsibility for taking the action or doing the thing rests with the employer. Further, any cost incurred in connection with taking the action or doing the thing is to be borne by the employer.
Other amendments to section 63 made by this clause are necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
42—Amendment of section 64—The Compensation Fund
This clause amends section 64 by adding the following to the list of matters towards which the Compensation Fund may be applied:
· any costs incurred by the Minister or the Crown if a decision or process of the Minister under section 62A becomes the subject of judicial proceedings;
· the costs associated with the establishment and operation of Medical Panels (see note on clause 60);
· the costs recoverable from the Compensation Fund under Part 6C (Medical Panels);
· the costs recoverable from the Compensation Fund under Part 6D (WorkCover Ombudsman).
43—Amendment of section 66—Imposition of levies
Under section 66, an employer, other than a self-insured employer, is liable to pay a levy to the Corporation. The levy is a percentage of the aggregate remuneration paid to the employer's workers in each class of industry in which the employer employs workers. The percentage applicable to classes of industry is fixed by the Corporation by notice in the Gazette. It is currently provided that a percentage fixed in relation to a class of industry must not exceed 7.5 per cent (thought this operates subject to other provisions, particularly subsection (9)). This clause amends the section by increasing the maximum to 15 per cent .
Proposed new subsection (2a) provides that the levy will be payable at first instance on the basis of an estimate of aggregate remuneration for a particular financial year in accordance with Division 6. (A new Division 6 is inserted by clause 47.)
44—Amendment of section 67—Adjustment of levy in relation to individual employers
Section 67 provides for adjustment of the levy in relation to individual employers, having regard to various listed matters. This clause amends the section by adding the following to that list: the employer's practices and procedures in connection with the appointment and work of a rehabilitation and return to work co-ordinator under Part 3 (including with respect to compliance with any relevant guidelines published by the Corporation for the purposes of section 28D).
45—Substitution of heading to Part 5 Division 5
46—Amendment of section 68—Special levy for self insured employers
The amendments made by these clauses are necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
47—Substitution of Part 5 Division 6
Part 5 Division 6, which relates to the payment of levies by employers, is deleted by this clause and a new Division, dealing with the same subject, is substituted.
Division 6—Payment of levies
69—Initial payment
This clause provides that an employer must provide to the Corporation an estimate of the aggregate remuneration the employer expects to pay to the employer's workers during a financial year. The estimate provided by an employer that is not a self-insured employer is to relate to workers in each class of industry. The return is to be accompanied by the levy payable on aggregate remuneration in the relevant class or classes of industry based on the estimate or estimates set out in the return.
The Corporation may, by notice to a particular employer or in the Gazette—
· specify another date that will apply instead of the prescribed date; or
· specify an estimate or estimates of aggregate remuneration that will apply instead of any other estimate; or
· specify that the levy must be paid according to some other requirement determined by the Corporation.
69A—Revised estimates of remuneration by employers
This section details circumstances in which an employer must provide the Corporation with a revised estimate or estimates. For example, an employer is obliged to advise the Corporation if it becomes aware that the actual remuneration paid or payable by the employer exceeds or is likely to exceed by more than the prescribed percentage the estimate, or latest estimate, of aggregate remuneration applying in relation to the employer under Division 6.
69B—Certificate of remuneration
The Corporation may require an employer to provide a certified statement of remuneration paid or payable by the employer in a designated form during a period specified by the Corporation to workers employed by the employer. The requirement is to be made by notice in writing to the employer.
69C—Revised estimates of remuneration by Corporation
This section authorises the Corporation to, in its absolute discretion, review an estimate of remuneration previously made under Division 6.
69D—Statement for reconciliation purposes
Section 69D requires an employer to provide the Corporation with a statement setting out the remuneration paid by the employer to workers employed by the employer during a period for which a levy was payable.
69E—Adjustment of levy
The Corporation may issue a notice of adjustment of a levy to an employer if it considers the levy should be adjusted for any 1 of
The Corporation may issue a notice of adjustment of a levy to an employer if it considers the levy should be adjusted for any 1 of a number of reasons specified in the section.
69F—Deferred payment of levy
Under this section, the Corporation may defer the payment of a levy by an employer in financial difficulties if satisfied that the employer has a reasonable prospect of overcoming those difficulties and the deferment would assist materially in overcoming the difficulties. A deferment may be conditional, and the Corporation may cancel a deferment by written notice to the employer.
69G—Exercise of adjustment powers
Under this section, the Corporation may exercise its powers under Division 6 regardless of whether or not—
· a levy has been fixed, demanded or paid; or
· a period to which a determination or adjustment may apply has been completed; or
· the Corporation has already reviewed or adjusted an estimate, liability or payment under the Division; or
· circumstances have arisen that would, but for this section, stop the Corporation from conducting a review, or making a determination or adjustment.
48—Amendment of section 70—Recovery on default
Section 70 provides the Corporation with a power of recovery in certain circumstances. Under the section as amended by this clause, if an employer fails or neglects to provide information when required by or under Part 5 of the Act, or the employer provides information that the Corporation has reasonable grounds to believe is defective, the Corporation may make its own estimates, determinations or assessments. The Corporation may also impose a fine on the employer. A fine so imposed may be remitted by the Corporation in part or in full.
49—Amendment of section 72—Review
Under section 72, an employer may require the board of management of the WorkCover Corporation to review certain decisions. As a consequence of this amendment, if an employer considers that a decision of the Corporation as to the estimate of remuneration that is to be used for the calculation of a levy is unreasonable, the board must review the decision. On a review, the board may alter the estimate.
50—Amendment of section 78—Constitution of Tribunal
Section 78 provides that the Workers Compensation Tribunal may be comprised of a Full Bench, a single presidential member or a single conciliation and arbitration officer. This amendment to section 78 removes the reference to the Full Bench.
51—Repeal of section 78A
This clause repeals section 78A, which is no longer required as it relates to the constitution, and decisions of, the Full Bench.
52—Substitution of Part 6 Division 10
Division 10 of Part 6 of the Act deals with appeals and references of questions of law. The Division currently provides that an appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal. The Full Bench may refer a question of law for the opinion of the Full Court of the Supreme Court. This clause deletes Division 10 and substitutes a new Division under which different arrangements apply in respect of appeals and questions of law.
Division 10—Appeals and references of questions of law
86—Appeals from decisions of arbitration officers
Under new section 86, an appeal lies on a question of fact or law against a decision of an arbitration officer to a single presidential member of the Tribunal.
86A—Appeals on question of law to Supreme Court
An appeal lies on a question of law against a decision of a presidential member to a single Judge of the Supreme Court in the case of a question decided as a part of interlocutory proceedings and to the Full Court of the Supreme Court in any other case. An appeal cannot be commenced without the permission of a Supreme Court Judge .
86B—Reference of question of law to presidential member
An arbitration officer may refer a question of law for the opinion of a presidential member of the Tribunal. On such a reference, the presidential member may—
· decide the question of law referred to the presidential member; or
· refer the matter back to the arbitration officer with directions the presidential member considers appropriate; or
· refer the question of law to the Full Court of the Supreme Court under section 86C; or
· make consequential or related orders (including orders for costs).
86C—Reference of question of law to Supreme Court
A presidential member may, under this section, refer a question of law for the opinion of the Full Court of the Supreme Court. The Full Court may—
· decide the question of law; or
· refer the matter back to the presidential member with directions considered appropriate; or
· make consequential or related orders (including orders for costs).
53—Amendment of section 89—Interpretation
This amendment is necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
54—Insertion of section 91B
Section 91B, which is a new section inserted by this clause, applies to a dispute relating to a decision to vary, discontinue or suspend weekly payments of compensation. The section authorises the Tribunal to direct the Corporation or self insured employer who is a party to such a dispute to pay, or to continue to pay, weekly payments of a specified amount for a specified period or periods (each of which may not exceed 13 weeks). The Tribunal may also direct payment of weekly payments with respect to a period that is before the direction is given, but that period must not exceed 13 weeks.
The Tribunal should not make such a direction if it is satisfied that there is (and continues to be) a genuine and substantive dispute about the worker's entitlement to weekly payments of compensation.
A decision of a conciliator or arbitrator under the section is subject to review by a presidential member of the Tribunal. If a dispute is subsequently resolved in favour of the Corporation or a self-insured employer, the Corporation or employer may recover amounts paid under the section as a debt or set off the amounts against liabilities of the Corporation or employer in respect of the person to whom the amounts were paid.
55—Substitution of section 92D
Section 92D currently provides for the reference of a dispute that is not settled in conciliation proceedings into the Tribunal for either arbitration or judicial determination. This clause substitutes a new section. Under new section 92D, if conciliation proceedings do not result in an agreed settlement of a dispute, the dispute is to be referred by the conciliator into the Tribunal for arbitration.
56—Amendment of section 93A—Conduct of proceedings
Under section 93A as amended by this clause, an arbitration is to be conducted as a full determination of the matters in dispute.
57—Repeal of Part 6A Division 6
Division 6 of Part 6A, relating to judicial determination of disputes, is repealed by this clause because disputes are no longer to be referred for judicial determination.
58—Amendment of section 95—Costs
Under section 95 as amended by this clause, a party to a dispute (other than a compensating authority) is entitled to an award against the compensating authority for the party's reasonable costs of the initial reconsideration of the disputed decision and any subsequent proceedings for resolution of the dispute under Part 6A. This principle operates subject to Part 6 and limits prescribed by regulation.
59—Insertion of section 95A
This clause inserts a new section authorising the Tribunal to make certain orders if a party's professional representative has caused costs to be incurred improperly or without reasonable cause or has caused costs to be wasted by undue delay or negligence or by any other misconduct or default.
The orders that the Tribunal may make are as follows:
· that all or any of the costs between the professional representative and his or her client be disallowed or that the professional representative repay to his or her client the whole or part of any money paid on account of costs;
· that the professional representative pay to his or her client all or any of the costs which his or her client has been ordered to pay to a party;
· that the professional representative pay all or any of the costs of a party other than his or her client.
A professional representative is in default if any proceedings cannot conveniently be heard or proceed, or fail or are adjourned without any useful progress being made, because the professional representative failed to—
· attend in person or by a proper representative; or
· file a document which ought to have been filed; or
· lodge or deliver a document for the use of the Tribunal which ought to have been lodged or delivered; or
· be prepared with any proper evidence or account; or
· otherwise proceed.
A professional representative must be given an opportunity to make representations and call evidence before an order is made against him or her under the section.
60—Insertion of Parts 6C and 6D
The clause inserts 2 new Parts. The first deals with the establishment of Medical Panels while the second establishes the office of WorkCover Ombudsman.
Part 6C—Medical Panels
Division 1—Establishment and constitution
98—Establishment
This section provides that there will be such Medical Panels as are necessary for the purposes of the Act and sets out procedures for the appointment of persons to, and removal of persons from, Medical Panels.
98A—Constitution
This section provides that a Medical Panel is to consist of the number of members as is determined by the Convenor of Medical Panels in each particular case. The number of members is not to exceed 5.
98B—Procedures
Medical Panels are not bound by the rules of evidence and may act informally and without regard to technicalities or legal forms.
98C—Validity of acts
An act or proceeding of a Medical Panel is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.
98D—Immunity of members
No personal liability will attach to a member of a Medical Panel for an act or omission by the member or the Medical Panel in good faith and in the exercise or purported exercise of powers or functions under the Act.
Division 2—Functions and powers
98E—Interpretation
This clause provides that the following are medical questions:
· a question whether a worker has a disability and, if so, the nature or extent of that disability;
· a question whether a worker's disability—
· in the case of a disability that is not a secondary disability or a disease—arose out of or in the course of employment; or
· in the case of a disability that is a secondary disability or a disease—arose out of employment or arose in the course of employment and the employment contributed to the disability;
· a question whether a worker's employment was a substantial cause of a worker's disability consisting of an illness or disorder of the mind;
· a question whether a worker has suffered a disability of a kind referred to in the first column of Schedule 2 (which relates to disabilities presumed to have arisen from employment);
· a question whether a medical expense has been reasonably incurred by a worker in consequence of having suffered a compensable disability;
· a question whether a charge for a medical service should be disallowed under section 32(5);
· a question whether a disability results in incapacity for work;
· a question as to the extent or permanency of a worker's incapacity for work and the question whether a worker has no current work capacity or a current work capacity;
· a question as to what employment would or would not constitute suitable employment for a worker;
· a question as to whether a worker who has no current work capacity is likely to continue indefinitely to have no current work capacity;
· a question whether a worker who has a current work capacity is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work and, if not so incapable, what further or additional employment or work the worker is capable of undertaking;
· a question as to when a disability, other than noise induced hearing loss, that developed gradually first caused an incapacity for work;
· a question as to when and in what employment a worker with noise induced hearing loss was last exposed to noise capable of causing noise induced hearing loss;
· a question as to when a worker has ceased to be incapacitated for work by a compensable disability;
· a question as to what constitutes proper medical treatment for the purposes of section 36(1a)(c);
· a question as to whether a disability is permanent and, if so, the level of impairment of a worker for the purposes of sections 43 and 43A;
· a question as to whether a provision of a rehabilitation and return to work plan imposes an unreasonable obligation on a worker;
· a question as to any other prescribed matter.
98F—Functions
A Medical Panel's function is to give an opinion on a referred medical question.
98G—Powers and procedures on a referral
This section sets out the powers and procedures of a Medical Panel. A Medical Panel may ask a worker—
· to meet with the Medical Panel and answer questions;
· to supply to the Medical Panel copies of all documents in the possession of the worker relating to the medical question;
· to submit to a medical examination by the Medical Panel or by a member of the Medical Panel.
A person or body referring a medical question to a Medical Panel is required to submit a document to the Medical Panel specifying—
· the disability or alleged disability to, or in respect of, which the medical question relates;
· the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute.
The person or body must also submit copies of all documents relating to the medical question in the possession of the person or body.
Under subsection (7), information given to a Medical Panel cannot be used in subsequent proceedings unless the proceedings are before the Tribunal or a court under the Act, or the worker consents to the use, or the proceedings are for an offence against the Act.
98H—Opinions
Medical Panels are required under this section to form an opinion on referred medical questions within 60 days following the referral or a longer period agreed by the Corporation or the Tribunal. The Medical Panel must give a certificate as to its opinion.
Division 3—Related matters
98I—Admissibility
A Medical Panel's certificate is admissible in any proceedings under the Act, and a member of a Medical Panel may give evidence as to matters in a certificate given by a panel of which he or she was a member. The member cannot be compelled to give such evidence.
98J—Support staff
The Minister is required under this section to ensure that there are such administrative and ancillary staff as are necessary for the proper functioning of Medical Panels.
Part 6D—WorkCover Ombudsman
Division 1—Appointment and conditions of office
99—Appointment
Section 99 provides that there is to be a WorkCover Ombudsman who is to be appointed by the Governor. The person appointed to the role may hold another office or position if the Governor is satisfied that there is no conflict between the functions and duties of the WorkCover Ombudsman and the functions and duties of the other office or position.
99A—Term of office and conditions of appointment
Section 99A sets out the term of office, which is not to exceed 7 years, and the conditions of the appointment of the WorkCover Ombudsman. A person cannot hold office as WorkCover Ombudsman for more than 2 consecutive terms.
99B—Remuneration
The WorkCover Ombudsman's remuneration, allowances and expenses are to be determined by the Governor.
99C—Temporary appointments
This section authorises the Minister to appoint a person to act as WorkCover Ombudsman—
· during a vacancy in the office of WorkCover Ombudsman; or
· when the WorkCover Ombudsman is absent from, or unable to discharge, official duties; or
· if the WorkCover Ombudsman is suspended from office.
Division 2—Functions and powers
99D—Functions
The functions of the WorkCover Ombudsman are as follows:
· to identify and review issues arising out of the operation or administration of the Act, and to make recommendations for improving the operation or administration of the Act, especially so as to improve processes that affect workers who have suffered a compensable disability or employers;
· to receive and investigate complaints about administrative acts under the Act, and to seek to resolve those complaints expeditiously, including by making recommendations to relevant parties;
· to encourage and assist the Corporation and employers to establish their own complaint-handling processes and procedures with a view to improving the effectiveness of the Act;
· to initiate or support other activities or projects relating to the workers rehabilitation and compensation scheme established by the Act;
· to provide other assistance or advice to support the fair and effective operation or administration of the Act.
He or she may act on his or her own initiative, at the request of the Minister or on the receipt of a complaint from an interested person. However, under subsection (3), the WorkCover Ombudsman may not investigate certain acts.
The WorkCover Ombudsman may attempt to deal with a complaint by conciliation.
99E—Powers—general
The WorkCover Ombudsman has the powers necessary or expedient for, or incidental to, the performance of his or her functions.
99F—Obtaining information
Under this section, if the WorkCover Ombudsman has reason to believe that a person is capable of providing information or producing a document relevant to a matter under his or her consideration, he or she may, by notice in writing, require the person to do 1 or more of the following:
· to provide the information to the WorkCover Ombudsman in writing signed by the person or, in the case of a body corporate, by an officer of the body corporate;
· to produce the document to the WorkCover Ombudsman;
· to attend before a person specified in the notice and answer questions or produce documents relevant to the matter.
The maximum penalty for failing to comply with such a requirement is a fine of $5 , 000.
99G—Power to examine witnesses etc
The WorkCover Ombudsman, or a person who is to receive information under section 99F, may administer an oath or affirmation to a person required to attend before him or her and may examine the person on oath or affirmation. The WorkCover Ombudsman may require a person to verify by statutory declaration—
· any information or document produced; or
· A statement that the person has no relevant information or documents or no further relevant information or documents.
The maximum penalty for failing to comply with such a requirement is a fine of $5 , 000.
Division 3—Other matters
99H—Independence
The WorkCover Ombudsman is to act independently, impartially and in the public interest. The Minister cannot control how the WorkCover Ombudsman is to exercise his or her statutory functions and powers.
99I—Staff
The WorkCover Ombudsman's staff is to consist of—
· Public Service employees assigned to work in the office of the WorkCover Ombudsman; and
· persons appointed by the WorkCover Ombudsman, with the consent of the Minister, for the purposes of the Act.
99J—Funding
The cost associated with the office of the WorkCover Ombudsman (including in the performance by the WorkCover Ombudsman of functions) and the WorkCover Ombudsman's staff are to be recoverable from the Compensation Fund under a scheme established or approved by the Treasurer after consultation with the Corporation.
99K—Delegation
This section sets out the WorkCover Ombudsman's power to delegate a function or power to a particular person or body or to the person for the time being occupying or holding a particular office or position.
99L—Annual report
The WorkCover Ombudsman must, on or before 30 September in each year, forward a report to the Minister on the work of the WorkCover Ombudsman during the financial year ending on the preceding 30 June. The Minister must have copies of the report laid before both Houses of Parliament.
99M—Other reports
The WorkCover Ombudsman may, at any time, prepare a report to the Minister on any matter arising out of the exercise of the WorkCover Ombudsman's functions. The Minister must have copies of the report laid before both Houses of Parliament.
99N—Immunity
The WorkCover Ombudsman is to incur no civil liability for an honest act or omission in the performance or exercise, or purported performance or exercise, of a function or power under the Act. This immunity does not extend to culpable negligence.
61—Amendment of section 103A—Special provision for prescribed classes of volunteers
This amendment is necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
62—Amendment of section 105—Insurance of registered employers against other liabilities
This clause amends section 105(2) by adding a reference to a rehabilitation and return to work plan. The subsection currently refers only to a rehabilitation programme.
63—Amendment of section 106—Payment of interim benefits
Under section 106, the Corporation may make interim payments of compensation pending the final determination of a claim. New subsection (3), inserted by this clause, makes it clear that the section does not derogate from Division 7A of Part 4 (Special provisions for commencement of weekly payments after initial notification of disability), which is inserted by clause 29.
64—Amendment of section 107B—Worker's right of access to claims file
Section 107B provides that the Corporation or a delegate of the Corporation must, at the request of a worker, provide the worker with certain material or make certain material available for inspection. The maximum penalty for an offence against the provision is currently a fine of $2 , 000. This clause increases the maximum fine to $5 , 000.
65—Amendment of section 111—Inspection of place of employment by rehabilitation adviser
The maximum penalty for hindering an inspection by a rehabilitation adviser of a disabled worker's place of employment is currently a fine of $3 , 000. This clause amends the provision by increasing the maximum to $5 , 000.
66—Amendment to section 112—Confidentiality to be maintained
The maximum penalty for disclosing confidential information contrary to section 112(1) is currently a fine of $3 , 000. This clause amends subsection (1) by increasing the maximum fine to $5 , 000.
A new subsection authorises the Corporation to enter into arrangements with corresponding workers compensation authorities about sharing information obtained in the course of carrying out functions related to the administration, operation or enforcement of the Act or a corresponding law. A disclosure made in accordance with such an arrangement will be permitted, as will a disclosure authorised or required under any other Act or law.
A corresponding workers compensation authority is any person or authority in a State or a Territory other than South Australia with power to determine or manage claims for compensation for disabilities arising from employment.
67—Insertion of section 112AA
The new section inserted by this clause prohibits an employer who is registered under the Act, and an employee of such an employer, from disclosing the physical or mental condition of a worker unless the disclosure is—
· reasonably required for, or in connection with, the carrying out of the proper conduct of the business of the employer; or
· required in connection with the operation of the Act; or
· made with the consent of the person to whom the information relates, or who furnished the information; or
· required by a court or tribunal constituted by law, or before a review authority; or
· authorised or required under another Act or law; or
· made—
(i) to the Corporation; or
(ii) to the worker's employer; or
· made under the authorisation of the Minister; or
· authorised by regulation.
68—Amendment of section 113—Disabilities that develop gradually
These amendment are necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
69—Amendment of section 119—Contract to avoid Act
Section 119(2) provides that a purported waiver of a right conferred by or under the Act is void and of no effect. Under subsection (3), a person who enters into an agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of the Act, or who attempts to induce a person to waive a right or benefit conferred by or under the Act, is guilty of an offence.
Under proposed new subsection (4), subsections (2) and (3) will not apply to action taken by an employer with the consent of the Corporation or to an agreement or arrangement entered into by an employer with, or with the consent of, the Corporation.
70—Amendment of section 120—Dishonesty
This amendment is necessary because of the change in terminology from 'exempt employer' to 'self-insured employer'.
71—Insertion of section 123B
Under new subsection 123B, the Governor may prescribe a code to be known as the Code of Claimants' Rights. The purpose of the Code is to meet the reasonable expectations of claimants for compensation under the Act about how they should be dealt with by the Corporation or a self-insured employer. The Code is to do the following:
· set out principles that should be observed by the Corporation and self-insured employers;
· provide for the procedure for lodging and dealing with complaints about breaches of the Code;
· provide—
· for the consequences of, and remedies for, a breach of the Code by the Corporation or a self-insured employer; and
· how and to what extent the Corporation or a self-insured employer must address situations where its conduct is not consistent with or does not uphold the rights of claimants under the Code.
72—Amendment of Schedule 1
This clause amends Schedule 1 by the insertion of a new clause that provides for the making by regulation of provisions of a saving or transitional nature consequent on the amendment of the Act by another Act. Although a provision of a regulation made under this clause may take effect from the commencement of the amendment or from a later day, a provision that takes effect from a day earlier than the day of the regulation's publication in the Gazette does not operate to the disadvantage of a worker by decreasing his or her rights.
73—Substitution of Schedule 3
This clause inserts 2 new Schedules. Schedule 3 is inserted for the purposes of section 43(3). Schedule 3A is inserted for the purposes of section 43B.
Schedule 1—Transitional provisions
The Schedule includes a number of necessary transitional provisions.
When Michael Wright was the opposition spokesperson for Industrial Relations and Workers Compensation prior to the election of the ALP to government in 2002 in South Australia he was provided with an enormous amount of information from people inside the trade union movement and within the WorkCover Corporation that clearly showed that the scheme was on a downward slide as a consequence of political decisions that had been taken by the Liberal state government and the leadership of the Corporation.
In 2000-01 the WorkCover board and the CEO of the WorkCover Corporation decided to not only reduce the levy rate but also to provide a rebate to employers throughout South Australia.
In 2000-01 Michael Wright attended at least three meetings at the United Trades and Labor Council’s office on South Terrace. On one occasion the then opposition leader, Mike Rann, accompanied Michael Wright. On each occasion Michael Wright gave an absolute assurance that, on election of the ALP to government, the Workers’ Rehabilitation and Compensation Act would be improved to benefit injured workers.
On one occasion Wright stated that should the ALP be elected in 2002 he would have a review conducted of the workers’ compensation scheme within six weeks after being elected and the findings would be introduced through legislative change. The trade union representatives involved in workers’ compensation at the time felt that the timeframe was ambitious but the commitment was welcomed.
On being elected minister, Wright established the Stanley review and the findings were handed down in mid 2002. However, it was not until December 20, 2002 that Minister Wright officially released the findings. They have gathered dust ever since.
Minister Wright is to be condemned for his failure to honour his commitment to the trade union movement and his lack of responsibility in addressing the leadership and management problems within the WorkCover Corporation.
Approximately 18 months ago Treasurer Kevin Foley, supported by representatives of the business sector, stated that there was a problem with WorkCover and that it would be fixed. Treasurer Foley and the chairperson of the WorkCover board, Bruce Carter, decided that the board would put up recommendations to the government to change the WorkCover legislation.
The recommendations that were put forward were extremely draconian. However, Bruce Carter and the majority of the WorkCover board were so confident that the recommendations that they had put to the government would be introduced that the WorkCover management established a unit within the WorkCover Corporation specifically to assist the government in drafting the necessary legislative changes.
In mid 2007, I and another union officials were invited to Minister Wright’s office to discuss our concerns that the Corporation was outsourcing their responsibilities, under section 58B and 58C of the Act, to Employers Mutual which was like putting Dracula in charge of the blood bank. The Minister stated that he shared our concerns but was powerless to do anything about it as it was a Board decision.
During our discussion I raised with Minister Wright the Trade Union movement’s concerns that the Corporation was working on amendments to the legislation that were draconian. He gave his undertaking that while he was minister responsible for workers’ compensation in South Australia he would not introduce legislation that was detrimental to injured workers. History has now shown that Minister Wright has reneged on that undertaking, just as he reneged on his promise in relation to the Stanley review in 2002.
Minister Wright however is not the primary architect behind the proposed legislation that will have dramatic adverse affects on injured workers in this state and undermines the conditions and protection for workers that unions have fought for. Treasurer Foley has played the leading role in promoting the proposed changes to the legislation and is working hand in hand with the business community to ensure their passage through parliament.
This is the man that masquerades as a Laborite but in reality is more conservative than his counterparts in the Liberal Party. This is the man who got it wrong in the Nicole Corns saga, the Port Adelaide bridges, the Victoria Park corporate grandstand and considers South Australians as whingers. His philosophy is more directed at looking after and protecting the business interest of his corporate mates in the business sector than the average working person in this State.
Foley’s cohort, Pat Conlon — purported to be the leader of the left wing of the Labor Party — is another that deserves to be condemned for his involvement in this sorry saga. This fellow espoused working-class socialist left principles for years before he got into parliament. Once elected, however, his ideology changed. If he had voiced his opposition to the proposed legislative changes and used his influence with Rann and Foley injured workers would not be confronted with the harsh and unjust legislation that is currently up for debate in parliament.
Rann, Foley, and Conlon claim that even with the proposed legislative changes, the South Australian workers’ compensation scheme will still be the best in Australia. The reality is that, if passed by parliament, the proposed legislation will be extremely detrimental to injured workers and their families and the business sector will benefit.
Let’s look at the facts and not the political spin:
Injured workers will be forced back to work after 13 weeks. That will lead, in some cases, to workers developing chronic injuries because they will not be able to afford to not be at work.
Injured workers will have even fewer rights to require their employers to provide them with suitable employment or the equivalent. One, if not the most significant reason, for why the Corporation has a large liability is the fact that some employers put barriers to frustrate the return of the injured worker to the workplace to the extent that the worker eventually has to give up. In a lot of instances, workers have to have psychological counselling as a consequence of the employers actions. There is no amendment to the Act to allow punitive action to be taken against an employer who fails to meet their obligations to provide suitable employment after a worker is injured. In actual fact the way the legislation is currently proposed will allow employers further scope to stop injured workers from returning to the workplace where they sustained their injuries.
In 1991 the then Labor government through negotiations with the trade union movement removed common law from the legislation on the proviso that injured workers would essentially be looked after. Irrespective of how serious the negligence of the employer an injured worker cannot sue the employer under common law. The proposed legislative changes however propose that if an injured worker is not totally and permanently incapacitated after 130 weeks he/she will be thrown on to the scrapheap. Again, another betrayal of the Labor Party.
The Rann government is claiming that the families of workers who are killed on the job will be looked after. However, if a worker is terminally ill from a workplace cause and their claim has been delayed and not been accepted prior to the death of the worker, the Corporation will not have to pay out anything to the worker’s family.
The Rann government is making great claims about rehabilitation and return to work coordination i.e. where employers employ more than 30 employees the employer will nominate one employee as the rehabilitation and return to work coordinator. But in reality this person will have no more authority than an occupational health and safety representative. The employer will still have the ultimate say in what actions are taken.
Presently a worker who is issued with a Discontinuance Notice has the right to appeal against the determination and immediately when they lodge a Notice of Dispute the compensating authority is compelled by law to continue paying the worker until the matter is heard in the Tribunal. The proposed legislation will change this and it will mean that the worker will have to lodge a Notice of Dispute which could take up to at least six weeks to be heard before they can argue that payments should continue. This is designed to starve injured workers back to work.
The current Act allows an injured worker to pursue a lump sum payment if, as a consequence of their injuries, the injured bodily parts are permanently impaired (permanent loss of function or disfigurement). There is no threshold level except for industrial deafness (5%). With the new legislation there will be a threshold level of 5% which will, in effect, stop workers who have 4.9% impairment from claiming approximately $6,500. A worker may have sustained four separate injuries and the four are all below the 5% threshold. In effect, under the present legislation they would receive approximately $24,000.00 but under the new legislation they would receive nothing. This will provide a windfall for employers. It is still unclear as to how a person will be assessed to see if they have a loss of function but it does appear that the Rann government is moving towards establishing regulations or "WorkCover guidelines" allowing WorkCover to establish and enforce their own guidelines. This will be like putting the fox in charge of the chicken coop.
The legislation will allow WorkCover to request costs to be awarded against union advocates or officials if it is found that there were delays in the Workers’ Compensation Tribunal proceedings (even if the delay was not their fault). Again, this is another bullying tactic by WorkCover against injured workers and their representatives. From my own observations over many years of practising in the Tribunal the vast majority of delays are caused by Self-Insured Employers, Employers Mutual SA (WorkCover’s agent) of their legal representatives.
Medical panels will be established by WorkCover. Such panels will destroy the rights of injured workers and deny them basic entitlements. The vast majority of doctors in South Australia would not seek to become members of the panel. It is only those that presently provide services to WorkCover (Employers Mutual SA) and self-insured employers who will seek membership as it will be another way to profit at the expense of injured workers.
A WorkCover Ombudsman will be established and at first flush it appears to be a good idea but in reality the ombudsman will be a toothless tiger because he/she will not have the power to prosecute employers for breaking the law.
Premier Rann, when introducing the legislation in parliament, claimed that the proposed new legislation would not apply retrospectively. Clearly his statement was wrong as the majority of the new legislation in its current form is intended to apply retrospectively.
The proposed workers’ compensation legislative amendments demonstrate that the Rann Labor government leadership is prepared to sell out the interests of injured workers to boost its relationship with the South Australian business sector. The primary interest of the Rann government is to look after the financial interests of the business sector to the detriment of working people who traditionally have supported the ALP.
The Rann government’s obsession with maintaining a triple A financial rating is influencing the introduction of policies that betray workers who are forced to depend on the government to protect them. This is a violation and abuse of the trust that was put in that government when it was elected to office and must not be tolerated.
WORKERS REHABILITATION AND COMPENSATION (SCHEME REVIEW) AMENDMENT BILL 2008
HOUSE OF ASSEMBLY
2ND APRIL 2008
WORKERS REHABILITATION AND COMPENSATION (SCHEME REVIEW) AMENDMENT BILL 2008
Adjourned debate on second reading. (Continued from 1 April 2008.)
Mr HANNA (Mitchell) (12:02): I am speaking today in opposition to the Labor government's moves to cut injured workers' benefits through legislation. It is really important to go back to the history behind workers compensation in South Australia. The starting point is to go back to the 1971 act which formalised what was previously a common law response to people being injured at work. The 1971 act left employers to go out into the insurance market and get insurance to pay out injured workers when there was an injury at work. Jumping forward quickly, when it came to the early 1980s, insurance premiums had soared and there were widespread complaints from the business sector. At the same time, it was recognised that it was something of a lottery for injured workers, some of whom did well out of that scheme and some of whom did very poorly. There was actually interest across the opposing sectors (if I can describe it that way) of workers and employers to reform the system. The Labor government was more than happy to be part of that. When that eventually resulted in legislation, after many years of consultation and negotiation between the parties, the Hon. Frank Blevins, when he introduced the 1986 legislation, reviewed the negotiations to that point.
He paid particular credit to the Hon. Jack Wright, who was a prime mover behind getting agreement on a workers compensation scheme which would be suitable for both workers and employers. Suitable for employers because their premiums vastly reduced once the legislation was introduced—that is to say, their WorkCover levies were substantially less than what they were paying to private insurers across the board—and workers, although they suffered a reduction in their rights due to common law remedies being capped as to the amount of damages they could recover, at least had a set of statutory entitlements which was clear and straightforward. It was also a no fault scheme, so that workers did not have to make out a case for negligence on the part of the employer. That was one of the hit and miss aspects that, on the workers' side, was sought to be remedied by the statutory scheme. When I talk about insurance premiums coming down, they were coming down in some cases in the order of 20 per cent of payroll in some industries to maybe 6 per cent, or something of that order. For some industries, insurance premiums paid by employers were cut by a third. That says something about the insurance market and the fact that insurance companies will sometimes gouge when they can, but it also says something about the lack of emphasis on rehabilitation and return to work and workplace safety. That, of course, was one of the goals of the 1986 legislation when it was brought in. The point I make is that employers got a really good deal out of the 1986 legislation. They may not think so now, but at the time there was a lot of employer support for the deal. The legislation itself was massaged through parliament. The Labor government did not have the numbers in the upper house and modifications were made to the original proposal to make it even more palatable to employers including, on the motion of the Democrats at the time, the allowance for big businesses to self-insure. Moving forward to 1992 when, of course, there was a hung parliament—normally I am in favour of hung parliaments because I think the state is usually better managed when no one party has absolute control of the parliament—one of the consequences was that the Liberal opposition was able, at the behest of employers, to push major changes to the scheme. The most significant change, which got through in 1992 with the support of the speaker, was the abolition of common law rights entirely. I have sat in this chamber when the Labor leadership—and I refer to Rann, Conlon, Foley and Atkinson—have venomously accused members on this side of the house, including myself, of wanting to bring back common law rights, as if it was some rotten, corrupt thing but, in fact, it is nothing more than allowing workers to sue employers for negligence. In other words, if someone does the wrong thing, I say that we should have recourse in our judicial system somewhere for damages to be paid; for the wrongdoer to be brought to account and pay money to the victim. Common law rights are nothing more nor less than that. I thought it was a shame that common law rights were taken away from injured workers at that time; however, it is important to note that this had a major effect on the scheme's funding projections because, at that time, common law claims were paid from within the WorkCover fund. So, to cut out those common law claims obviously was going to reduce total outgoings from the fund.
Moving forward to 1995: of course, a Liberal government had been elected in 1993 and a wide range of cuts were made to workers' rights. Perhaps one of the most significant was the introduction of a two year review in relation to a worker's right to income maintenance. Workers with a partial incapacity for work were able to be given a letter which said, effectively, that they could do a certain type of work. That type of work would produce a certain income and, therefore, their income maintenance entitlement was to be cut by the amount of that work. The Supreme Court ruled that, essentially, the work had to be available. It could not be some hypothetical, fanciful thing—you could not ask someone off the factory floor to get a job as an astronaut; it had to be realistic and it had to be available. The 1995 amendments basically reversed that and allowed the corporation or the claims managers to say to a worker, 'You can do a certain kind of job. It doesn't matter that the job does not exist in South Australia, or there might be one position and 10,000 applicants, you have to do that job and we can reduce your income accordingly.' Basically, that has been the situation since then. What has happened in the scheme to lead to the drastic and cruel cuts that the Rann government is inflicting on workers at this time?
Well, there are a couple of significant things. I have said that it has been about claims management and it is unfortunate that the financial and insurance emphasis on the approach to managing claims has been at the expense of effective return to work. The claims managers through most of the history of WorkCover have not given enough emphasis to rehabilitation and return to work, thus frustrating the original objectives of the legislation. The Rann government cuts will not make that any better, despite a few million dollars being set aside for retraining and so on. One significant factor was the political cut to the WorkCover levy prior to the 2002 election. As a gift to employers, the Liberal Party of the time instigated a cut to the levy with employers to pay less to the WorkCover fund and, understandably, the WorkCover fund suffered considerably as a result of the considerably reduced income. Since that time, and after a period when there was no chief executive officer for WorkCover, the WorkCover system financially has been improving. If one looks at the graphs one can see that there is reason to believe that the unfunded liability will gradually reduce over time with appropriate management. That management needs to include proper use of redemptions, which are payouts. It means that where we have several thousand workers at present who have been on the scheme for more than two years—and in reality very few are likely to return to work—when the actuary looks at the unfunded liability of WorkCover, the actuary looks at paying them out their income maintenance, that is, 80 per cent of their wages approximately up to retirement age. There are hundreds of workers, if not thousands, I am convinced who would be willing to take a few years' wages and get off the system, not be hassled by claims managers and not be sent for repeat medical examinations that they feel are unnecessary. They would take a few years' wages and get off the system. Actuarially that would mean a dramatic turnaround in the unfunded liability. In 12 months, if you applied redemptions appropriately, you could probably get the scheme back into the black, whereas it is about a billion dollars in the red now. I will not quibble about precise figures as I have only 20 minutes and I am simplifying things to some degree. However, the principle is sound. There are plenty of people who want to get off the system. Over the past decade they have mostly been offered one or two years wages to get off the system, and people cannot afford that. They cannot afford to pay off their houses, and there is a Centrelink exclusion period, which means they cannot simply go straight onto disability benefits and have to live off any lump sum they get for a while before getting Centrelink benefits and, accordingly, offering one or two years wages has been fairly pointless and has had little effect in reducing the unfunded liability. We come to perhaps the historic day of 22 February 2008 when the Labor caucus agreed to the package to reduce workers' benefits that we see in this legislation. The most significant aspect unquestionably is a two and a half year review process, which almost certainly will have workers shunted off the system. I have been somewhat charitable, perhaps too generous, in describing this as dumping workers on the dole after two and a half years after they have received payments as a result of being injured. That is perhaps too generous because, for many injured workers, if their spouse works they will not be entitled to Centrelink benefits or social security and effectively will have their income reduced to zero. Potentially this will apply to a couple of thousand workers. When I have been out doorknocking, as I do regularly, I find that the initial response of many people is that they do not care, because it does not directly affect them, but once I ask people about where their children, husband or wife works, I often find that they start thinking about the sort of activities carried on in that workplace.
For example, even in supermarkets, which might appear quite benign to a lot of us, there are lots of injuries from boxes falling on people and hands being crushed, with people lifting machinery in the dock area, and so on. The point is that any workplace can result in workplace injuries. In fact, many of the areas where jobs are booming are quite dangerous—and mining probably a good example. It can happen to any worker on any day they go to work. I have found that once people start thinking about that they realise that the cuts being implemented here by the Rann Labor Government are quite cruel. What has led to them? Ultimately, it comes back to two things. On the part of the employers it is greed. They had a good deal when the 1986 legislation was brought in. They came back for another bite of the cherry in 1992 and common law was taken away from workers, so the worst performing employers, in terms of safety at work, could no longer be sued by the workers. Once the Liberal government came into office at the end of 1993 they came back for another bite of the cherry, and in 1995 changes were brought in to make it easier to take workers off benefits. Employers have come back and, through their political agents, they have been able to subvert the deal that was done in 1986. I stress again that that deal was struck largely as a result of consensus at the time. The other aspect to this move to cut injured workers' benefits is what I would call a lust for power. Why would people such as Rann, Foley, Atkinson and Conlon agree to cutting workers' benefits? The Labor Party for over 100 years has stood for protecting the rights of working people—people who cannot necessarily speak up for themselves, people who are at their most vulnerable if they have been injured in the workplace. The Labor Party has traditionally stood up for these people. It is an historic turnaround to have a Labor government introducing quite savage cuts to workers' benefits. I can only explain this in terms of the egos of those gentlemen about whom I have spoken and their desire to stay in power no matter what. How does that add up? Well, they are clearly currying favour with big business in this town and they are hoping that corporate donations will flow their way if these cuts are implemented—because there is a big financial gain for businesses in terms of reduced levies. It is not about unfunded liabilities. Quite clearly, it has been stated that these cuts will allow a reduction in levies. As I have said, the unfunded liability is turning around—and can be turned around—without cutting workers' benefits. I want to bring a human element to my claim that workers will be cruelly afflicted by these cuts. One person I have in mind is Ian, who has a bad back from a lifting and twisting injury in the factory in which he worked. It was not due to his fault: he was simply carrying out his duties. But after repetitive strain his back gave in. Ian is a battler and he went back to work. He wanted to work and was given light duties, and he was working almost full time. He has been on income maintenance to top up to his pre-injury earnings (or 80 per cent of them) for a bit over 2½ years. He will be one of the first affected by this legislation if it passes, because it is retrospective. It will affect people such as Ian who have been injured for more than 2½ years. It means that at any time a review can take place to say that he is capable of some work; and he admits that he is capable of work. In fact, he wants to work. Therefore, he can have his income maintenance cut off. The tragedy for Ian is that he works at Mitsubishi and shortly he will be out of that job—through absolutely no fault of his own. He has been a loyal employee for many years and he has been injured for more than 2½ years. At about the age of 50 he will not get another job anywhere. He does have a partial capacity for work and he can have his income maintenance cut under this cruel legislation. He does not know how he will pay the mortgage. That is just one example.
Another example involves a young man who was an apprentice to a butcher. For reasons of making a slicing machine easier to work and, hopefully, more efficient so that things could be done more quickly and, I suppose, with more productivity in the workplace and more profits ultimately for the employer, the guard was removed from that machine and the young man's hand was sliced off when he went to operate it. It does not really matter whose fault it is: what matters is that we have a young man without a great education who is minus one hand. The chances of his being gainfully employed are limited. But does he have a partial capacity for work? Of course he has. Under the cruel legislation the Labor government is bringing in, he will potentially—and, in fact, probably—have his income maintenance stopped 2½ years after the injury. There are other cruel cuts in this legislation, such as cuts to the lump sum that workers get for pain and suffering under section 43 of the legislation. For example, if someone loses a finger it does not matter if they need that finger because they are a typist, musician or keen sportsperson. They can receive nothing because a threshold is being introduced, and if people are not seriously enough injured they will get nothing. I will bring in a host of amendments to try to bring some more balance to this legislation. Clearly, that has not been the approach taken by the government.
I want to finish with a quote from one of our most powerful, persuasive and tactically brilliant members of parliament. He said: We will see injured workers threatened and harassed. We will see a government that will actively reduce benefits and work against the proper return-to-work arrangements that are essential if we are really committed to rehabilitation. We will see legislative and administrative action aimed at forcing workers onto social security, out of compensation, out of rehabilitation, out into the streets and onto social security. Instead of rehabilitation and support we will see this government enter into an adversarial approach to injured workers. It will cause massive financial hardship to many genuinely injured South Australian workers. It will cause stress to families and it will undermine personal dignity. That is what this government is about, make no mistake about it. This bill is not innocuous: it is about a change in power. It is about an end to consensus, and it is about the end of industrial relations, commonsense and consultation in this state. This is a day not of historic reform but of shame. It is about turning the clocks back by decades, and members opposite know it. That was said by the Hon. Mike Rann in 1995. Time expired.
Posted by Kris Hanna MP member for Mitchell at 3:17 PM, 23/4/2008
Evidence to a Parliamentary Inquiry alleging conflict of interest and favouritism in contracts being awarded by WorkCover had to be investigated thoroughly, Liberal Member of the Legislative Council Rob Lucas said today.
“A number of very serious claims had been made by witnesses at recent hearings of the Legislative Council Statutory Authorities Review Committee,” Mr Lucas said.
Mr L Birch: “…for many years it has been well known that De Poi Consultancy Services, which provides rehabilitation services, has not been the best organisation; in actual fact, I would not touch that company with a barge pole, to be quite frank. The reality is that she [Sandra De Poi] sits on the board and, as I said before, I believe she has a conflict of interest. She has a very good relationship with Ruth Mitchell from Employers Mutual (EML), and she has relationships with people in the Labor Party. I suggest to you that that is probably one of the main reasons she gets such a huge amount of work… …
Hon RI Lucas: “…Is it your evidence to this Committee that case managers of EML have said to you directly that they have been directed by Ruth Mitchell to use Sandra De Poi for certain –
Mr L Birch: “That’s right.”
(Hansard, 7 July 2008, Les Birch, Workers Compensation Advocate, CFMEU (SA Division)
Ms R Mckenzie-Ferguson: “Yes, certain providers are favoured by WorkCover and EML. They seem to be very well represented on the WorkCover Board.
Hon RI Lucas: “Are you referring to Sandy De Poi’s company?
Ms R Mckenzie-Ferguson: “Yes.”
(Hansard, 14 July 2008, Rosemary Mckenzie-Ferguson, Founder, Work Injured Resource Connection)
Ms A Costa: “…we have an industry that, despite a number of reviews of rehabilitation, still functions on favouritism and there is no independence in selection of providers, despite what we hear.”
(Hansard, 7 July 2008, Andrea Costa, Rehabilitation Provider, Costa Pericles Consultancy)
“It should be noted that the last three Annual Reports of WorkCover report that Ms De Poi’s company received a total $6,237,809 in contracts through WorkCover,” he said.
“In his evidence to the meeting of the Statutory Authorities Review Committee, Mr Les Birch indicated he had copies of correspondence with WorkCover and Ms De Poi outlining his concerns about these issues.
“Mr Birch has agreed to provide copies of all such correspondence to the Committee.
“Whilst reserving a final view on the accuracy of these serious claims, it is my view that they must be investigated by the Statutory Authorities Review Committee and WorkCover management and the Rann Government must also respond to these claims.
“In particular, have these concerns ever been raised with Premier Rann or Industrial Relations Minister Michael Wright and, if so, what action did they take?”
Article from: The Advertiser
MICHAEL OWEN, POLITICAL REPORTER
July 31, 2008 12:30am
THE state's most powerful union boss, from a Labor faction that offered crucial support for WorkCover laws, has been given a $50,000-a-year post on the WorkCover board.
The Advertiser understands Peter Malinauskas, who replaced Right factional heavyweight Senator Don Farrell as secretary of the Shop Distributive and Allied Employees Association, will be appointed within weeks.
The deal to get Mr Malinauskas on the board was secured this month by former industrial relations minister Michael Wright, a member of the Right, before he lost responsibility for WorkCover to Paul Caica, of the Left, in last week's Cabinet reshuffle.
The new WorkCover laws caused a deep factional split in the Labor Party but Premier Mike Rann won the day with the help of key Right figures in convincing ALP members the laws were necessary.
Deep divisions over WorkCover still exist.
The Government faces a censure motion, moved by the Australian Workers' Union, at the ALP state convention on August 16.
Mr Malinauskas would replace SA Unions secretary Janet Giles. She quit the board in February in protest at the new laws.
By law, the board must consist of nine members. Among requirements are that "two members must be appointed in consultation with worker interests".
Mr Caica is understood to have met the board yesterday but he would make no comment.
Mr Malinauskas yesterday said: "I have not had any discussions with the Government about this for the past fortnight. I'm still waiting and I haven't heard anything official, so I'm just not in a position to be able to provide any comment."
Opposition Upper House MP Rob Lucas said the appointment was "typical of the Rann Government's arrogance when WorkCover is facing a $1 billion unfunded liability crisis".
Chairman of WorkCover board Bruce Carter stepping down
THE State Government's "Mr Fix-it" - Bruce Carter - will step down as chairman of the WorkCover board.
The State Government will later today announce a new chairman – Philip Bentley, who also is chairman of the Thoroughbred Racing SA Board.
He also produced the Bentley Report, released last year and commissioned by the Government's Racing Minister Michael Wright, which was a review into the state of racing in South Australia.
Mr Carter will concentrate on his role as head of the Economic Development Board.
Announcing the appointment today, Industrial Relations Minister Paul Caica said Mr Bentley would bring extensive business leadership and strategic management experience to the role.
As revealed by The Advertiser today, Mr Caica also announced the appointment to the board of Peter Malinauskas, secretary of the Shop Distributive and Allied Employees Association.
The appointments, approved today by the Governor in Executive Council will take effect from August 7.
Mr Caica said he was confident the new board would "ensure the sustainability of South Australia's Workers Rehabilitation and Compensation Scheme".
"This was a task begun by the board in 2003 and it will continue through the implementation of the new legislation, and into the future," he said.
Comments
It appears the financial results for WorkCover's past 12 months have come in and Bruce is predictably moving to distance himself from the mess he created. Lets hope the public remember who created the mess.
Posted by: Phil Moir of greenwith 9:07pm July 31, 2008
Comment 8 of 8
Well Bruce Carter is certainly no Edward John Smith (captain of the titanic)
Posted by: sam bass of Adelaide 8:58pm July 31, 2008
Comment 7 of 8
Safe to say WorkCover has been a "Monumental stuff-up"
Posted by: Bill Watson of Ferries 8:54pm July 31, 2008
Comment 6 of 8
Shouldnt the chairman of the WorkCover board at least stay until the Statutory Authorities Review Committee into WorkCover has completed?
Posted by: Bill Watson of Ferries 6:22pm July 31, 2008
Comment 5 of 8
This can't be good news as our media seeking lime light loving Premier is no where to be see. The woes of WorkCover continue, and it is going to take a long time until the truth comes out. meanwhile all I can suggest injusred workers do is hold on, because come March 22nd 2010 when we have a brand new Minister in place with a brand new broom to sweep what is left of the management of WorkCover out the door, then the truth about the Board's inability to direct and the CEO's inability to manage will be on show for all to see. State Bank WorkCover style.
Posted by: Still Injured of 5:56pm July 31, 2008
Comment 4 of 8
Good riddance. Thanks for taking away worker entitlements!
Posted by: Mike of Adelaide 5:37pm July 31, 2008
Comment 3 of 8
Surely this can not be allowed. After steering workcover further into debt whilst at the helm he should stay to see if the reforms will actually work
Posted by: wayne mattner of plympton 5:20pm July 31, 2008
Comment 2 of 8
Can it be finally noted that whilst Mr Carter was at the helm since 2003 the system went backwards?
Posted by: Toby of Adelaide 5:14pm July 31, 2008
Comment 1 of 8
Posted by http://www.news.com.au/adelaidenow/story/0,22606,2 at 3:38 PM, 7/8/2008
GOVERNMENT ministers have answered only about 14 per cent of all questions put on notice in the Legislative Council in the past year.
Government ministers have only answered only about 14 per cent of all questions put on notice in the Legislative Council in the past year.
From the 286 questions, the Government has only answered 41.
The unanswered questions relate to nearly every portfolio and include questions about fees and charges, transport, health and water.
It was revealed by The Advertiser in December that the Government was slipping further behind in bringing back answers to questions, with more than 1000 parliamentary questions, some that date back to 2002, remaining unanswered.
What would you like to ask the State Government? Use the comments box below to pose your question?
Family First MLC Dennis Hood, who compiled the latest statistics, said he was disgusted that only 11 of his 38 questions had been answered.
Liberal MLC Rob Lucas has asked 185 questions, with only 16 replies.
"Members of the public often provide questions they want brought up in Parliament on their behalf and the Government is displaying a total arrogance," Mr Hood said.
"You could easily assume this Government is more interested in their public relations image than in actually being accountable."
Mr Hood said the Government was also refusing to grant Freedom of Information requests, with about 80 per cent of his requests denied.
He will introduce a bill to rework legislation regarding FOI exceptions to make the Government more accountable.
A spokesman for leader of the Legislative Council Paul Holloway said the issue of response times to Questions on Notice had nothing to do with secrecy and everything to do with the appropriate use of public servants.
"This Government remains open and transparent," he said.
"More information is made available through Freedom of Information requests, Parliament sits more often and answers more questions in Question Time than ever before, and more questions on notice are answered than under the previous Liberal Government."
Comments:
You have to question the intelligence of Advertiser readers when the poll shows 43% consider a bloody football ground to be the biggest issue on their horizon!
Posted by: A Small Brown Dog of dubious pedigree 6:19pm today
Comment 20 of 20
An emotion generating beat up article,good stories must be hard to find.
Posted by: alphonso of 4:32pm today
Comment 19 of 20
This is typical of this arogant, reactive government. There is no pro active leadership with this lot except if it relates to being re-elected (ie stadiums, tramlines, etc) It's time to govern for the good of the whole state Mr Rann, which includes essential services like education and health. Forget all the bean counting - go with your instincts and honesty!! 2010 is not far away!!!
Posted by: Kev of of the Country 4:22pm today
Comment 18 of 20
Labor politicians should know what happens when the people perceive them as arrogant and unable connect to the voters. It's happened recently to John Howard and co Someone needs to get rid of the spin and deliver solutions to the mounting problems we are facing. A revamp of the party might help as it seems our current pollies are neither listening to or answering voters concerns. I don't think the Liberals are any different. I will vote for the first party to get rid of the spin doctors, face the problems truthfully and get on with solutions without all the crap. Has anyone else noticed we hardly ever hear from individual politicians anymore, except when they make a mistake. Have their lips been sealed???? It makes the leaders look like control freaking dictators.
Posted by: cowpatty of the paddocks 3:47pm today
Comment 17 of 20
This is mildly interesting to know now, but hammer it home one month before the next election and all of the tens of millions they are going to spend in covering information like this up will be for nothing.
Posted by: Grahame Jones of Elizabeth Grove 2:40pm today
Comment 16 of 20
This is just another manifestation of the arrogance of the current Labor Government. They are totally out of touch with the people who voted them in. Bring on <arch 2010!
Posted by: CL of Adelaide 2:32pm today
Comment 15 of 20
I think they all should refund the money they have been paid for doing nothing. If this was a business then these people would get the sack for being unproductive. looks like if you want a job that is a big bludge then become a politician.
Posted by: Dean McQuillan of Findon 2:26pm today
Comment 14 of 20
this government continues to amaze me....lack of accountablility....needs to be taught a lesson ....bring on 2010 and do the correct thing PEOPLE !!
Posted by: craig of hindmarsh 1:53pm today
Comment 13 of 20
What are you complaining about? 14% is an amazing result given the fact that most of the Labor UIpper House members couldn't string two words together and collectively are the greatest waste of taxpayers money on the planet. Remember Rann wants to get rid of the upper House - that's why the Chamber has the dregs of Labor sitting back soaking up the public money like a sponge.
Posted by: Terry Pokorny of Adelaide 1:50pm today
Comment 12 of 20
This labor government is a disgrace in all areas and others including workcover. They are only interested in looking after the developers and big people in town. They are not representing the working famlies who traditionally voted for them. In reality we already have a liberal government in South Australia, no wonder Mr Hamiliton - Smith is not happy! Mr Rann is a wolf in sheep's clothing! As for the labor left you never see them oppose anything they are Mr Rann's sheep even the unions are in his pocket. The only person with any backbone to stand up for workers is Janet Gilles. The people have had enough and the next election will bring change.
Posted by: Cheryl Reid of 12:39pm today
Comment 11 of 20
Why are injured workers on WorkCover now offered redemptions before the actuaries calculate the unfunded liability. Could it be that the figure would need to be shown as improving even though the reforms will not take effect till next yerar?
Posted by: wayne mattner of plympton 11:48am today
Comment 10 of 20
Questions were asked about WorkCover dating back to 2002 without replies, and look what happened to that government department?
Posted by: Colin of Richmond 11:41am today
Comment 9 of 20
There should be an option 'Too late the fingers already up to the elbow on all issues'
Posted by: Tony of Exeter 11:29am today
Comment 8 of 20
So much for a government of the people, for the people by the people. Mr. Rann. You are supposed to represent the people of SA and that means answering questions put to your government by opposition members. Accountability is a part of democracy and the people will make you accountable on election day.
Posted by: K J Beinke of ADELAIDE 11:24am today
Comment 7 of 20
Why isn't there an "All of The Above" (including WorkCover) choice?
Posted by: BL of Adelaide 11:18am today
Comment 6 of 20
It is quite on the cards that dumb and dumber just don't know the answers. WHAT DISTAIN THESE POLIES MUST HAVE FOR US
Posted by: MIKE M. of UNLEY 11:15am today
Comment 5 of 20
the poll is broken, you cant vote for more than one option :)
Posted by: wtf of are you serious? 10:27am today
Comment 4 of 20
The answer by the 'spokesperson' for Holloway (doesn't he/she have the guts to have his/her name recorded???) is a classic example of the arrogance of the current Government and is a 'Yes Minister' answer at best. It's a Nhuremberg type answer. Am i impressed or persuaded by comparisons between current and ex Governments? Like hell I am !- you're in 'power' now but hopefully not for much longer.
Posted by: Roger of Adelaide 10:21am today
Comment 3 of 20
Unanswered questions means there is something to hide. My question is: How true are the rumors that this state is bankrupt and, if it isn't, where is the money? The LLyel McEwin physiotherapy waiting list has blown out to two years. No money for teachers or physiotherapists, but enough to give spin doctors a 20% pay rise, no argument or delay.
Posted by: harqueubus of adelaide 10:20am today
Comment 2 of 20
It just goes to show how arrogant the government has become. I believe that all politicians should be given a list of their outstanding questions and be given a set timeframe in which to respond (within the current sitting) otherwise they start to lose salary for every unanswered question. Secondly, I believe that any FOI requests should be adjudged by a totally independent, non-government, referee and that cabinet confidentially not be allowed as an excuse for non-disclosure after all they are employed by the people so the people have a right to know what they are doing. The only documents which should ever be restricted under FOI are those which impact upon national security.
Posted by: Brian Clements of 10:18am today
Comment 1 of 20
Posted by JOANNA VAUGHAN, POLITICAL REPORTER at 8:28 AM, 8/8/2008
WORKERS be protected from discrimination over family responsibilities under new laws planned for SA.
WORKERS will have the right to ask for more flexible working arrangements and be protected from discrimination over family responsibilities under new laws planned for SA.
The changes to the Equal Opportunity Act will protect both female and male employees from discrimination on the grounds of "life responsibilities" associated with family and caring.
The Government moves are outlined in a paper produced to respond to a parliamentary committee investigation into work-life balance which reported earlier this year.
Read full story
Comments
I hope that in remembering the flexibility for families and carers, some attention is paid to similar arrangements for people with chronic illnesses who are able to work in home-based offices, but are unable to make the journey into an office because of physical or immunological restrictions. It is possible for a person who is physically debilitated to continue working and being a productive taxpayer, where their job is predominantly mental (as distinct from physical, managerial or frontline customer-service) and performed in a sedentary way using modern technology (computers, networks, e-mail, Internet, WWW, web cams, teleconferencing and so on). Please, remember us and recognise that we can work full-time, pay taxes, and remain a contributory member of the community if our special circumstances are recognised.
Posted by: Nicola Stratford of 4:04pm today
Comment 9 of 9
Do you have to give small business owners yet another reason to NOT employ more people. It seems that people these days want it all. Short hours, high pay and flexibility at their employers expense. Toughen up Australians, it seems that the sterotype hard working Aussie is a thing of the past and we are producing a nation full of wimps.
Posted by: kelly of murray bridge 3:20pm today
Comment 8 of 9
I wonder if this will apply to injured workers on WorkCover. At the moment if an injured worker is seen to enjoying time with his children they are to be seen as faking.
Posted by: andrew pascoe of burnside 9:19am today
Comment 7 of 9
Industrial Relations Minister Paul Caica has done more in two weeks than Michael Wright did in 5 years.
Posted by: wayne mattner of plympton 9:11am today
Comment 6 of 9
If this ever comes into Law it will force the "managers" to effectively manage the employees to which they have a duty of care in a more holistic manner (taking into consideration personal as well as family obligations). Perhaps a little less of (everybody is available by mobile 24/7,if you dont have a mobile dont bother to apply for the job)attitude which in my veiw reflects the sub standard managerial practises of some managers and CEO's
Posted by: Edward Mark of Grange 6:49am today
Comment 5 of 9
The way South Australia is going there will be no worthwhile jobs left, we will all have to work for the government. Manufactoring is on the way out, no water for irrigators, farming is dying, the wine industray is over producing. Since Mike has been in charge things are on the slide.
Posted by: Eddy Taylor of Adelaide 6:34am today
Comment 4 of 9
While everyone is slapping each other on the back for a wonderful job in pursuing the objective of increasing participation in the workforce one can only think this is real cart before the horse stuff - you need a vibrant economy and jobs to bring about real increases in participation. This sounds like something out of Homer's Odyssey - South Australia, Land of the Lotus Eaters!
Posted by: Neville Desmond of 11:59pm August 10, 2008
Comment 3 of 9
I'd like to see it happen in an organisation not run by public sector, in fact even in the public sector I reckon career advancements could stall.
Posted by: Robert Smissen of Murray Bridge south Australia 11:00pm August 10, 2008
Comment 2 of 9
when are they going to review the appalling worker's comp laws?? Its no good if you have flexibility in the workplace if you get injured and can't claim workers comp!!
Posted by: Danielle of Perth Hills 10:34pm August 10, 2008
Comment 1 of 9
When Robert de Crespigny jetted off to London to deal into a bigger game, he left quite a vacuum as the Labor Government’s business advisor, director and commander in chief.
While he boasted to friends and relations that he was running the government, it wasn’t that short of the mark. His plans for SA became the State Plan; he ran public servants ragged as he usurped the power and influence of long-serving, loyal political comrades. They weren’t a bit sad when he went.
The void left by de Crespigny was never quite filled by the appointment of David Simmons, the retiring managing director of Hills Industries. Now the top business role in the state has been given to Bruce Carter, the managing partner of Ferrier Hodgson, a corporate reconstruction professional with a an enviable record.
He turned 50 a fortnight ago and gets up at 5.30 every morning to go running or to the gym. He looks fit, moves swiftly and he’s president of the National Heart Foundation.
Bruce Carter is the golden boy of South Australian business as far as the government is concerned. They made him chairman of WorkCover four years ago to stop the haemorrhaging; they put him in charge of a group of heavy-duty department heads to negotiate the best deal for the state with BHP Billiton over the Olympic Dam expansion and they’ve just made him chairman of the Economic Development Board.
But Carter insists his working day still revolves around his clients at Ferrier Hodgson, a corporate restructuring practice he established with Ross Haslam in 1992.
Fitness is a big part of his life. After playing footy for the Pembroke Old Scholars for 10 years, learning to “lose with dignity”, Carter became a central umpire for the Amateur League and Saturdays would find him chasing the play all over those grounds from Rosewater to the beautiful university ovals – for 19 years.
“When you’ve been working hard on difficult cases all week it’s great to lose yourself for two hours and forget all about what’s been driving you crazy,” Carter said. He now sings bass for the Kapelle Singers, ABC’s choir of the year 2007, run by Colin Curtis and where Carter is in awe at the abilities of his fellow-choristers – many of them from the Elder Conservatorium.
Over the past 16 years Carter has run some of the more interesting corporate reconstructions in Adelaide. Harris Scarfe Ltd was a $450 million business with 2500 employees when it ran into difficulties following some financial shenanigans as the management tried to cover up a looming disaster with fairytale profit and loss statements for which a fraud conviction was the eventual result.
Carter said the Harris Scarfe reconstruction was the trickiest and most challenging of a long list of corporate messes that he’s been hired to solve.
“The fraud made the job of getting the company into a fit state to sell much harder because not knowing the real numbers created such uncertainty,” Carter said. “Gaining the confidence of potential buyers with that in the background was hard enough but the financial climate in 2001 made it even harder.”
But he got the sale away to Robert Atkins – with major creditor and Carter’s client, the ANZ Bank, retaining a 25 per cent stake – which the new owners ran for seven years before selling the lot to a private equity outfit, Momentum Capital last year.
Bresagen was a basket case when Carter took control. The biotech was restructured, creditors paid in full, and the equity floated off and eventually taken over by a US pharma group.
Carter said the idea to form a line-up of departmental heads with mining, infrastructrure, energy and transport responsibilities to work with the BHP Billiton team working on the prefeasibility study at Olympic Dam had been Robert de Crespigny’s idea when he was running the EDB.
BHP Billiton input comes from its base metals spokesman Richard Yeeles and Graeme Hunt, the president of uranium and development of Olympic Dam and the man credited with managing the delivery of BHP’s significant growth pipeline within its iron ore business. In the SA Government corner, Paul Case manages the team with a staff of four.
Carter said the joint forum had three main objectives: to facilitate a smooth relationship between the state and the company; identify opportunities for SA and maximise local input; and facilitate the renegotiation of the indenture agreement which specifies, in particular, the configuration of the amount of smelting to be done at the mine or concentrates shipped off to China.
Currently, BHP Billiton value adds the ore on-site. It’s a tricky game of perception management for BHP chief Marius Kloppers. With the Rio merger now before the European Commission, Kloppers is expected to talk up the future of OD to win over Rio shareholders. On the other hand, Kloppers has to manage a perception with the SA Government that dismantling and rebuilding the OD smelter and replacing it with something six times bigger is hopelessly uneconomic.
“The challenge is that the expansion is now bigger than anybody anticipated and developments have slowed because of the sheer size of the orebody,” Carter said. “The good thing for us is that they can’t take it anywhere.”
“Whatever the outcome we know that BHP Billiton will do it well. We are lucky that they own it because they have the financial capacity to develop something very special and important for the state.”
Turning to the EDB – where he takes over as chairman on July 1 – Carter said the job tied in neatly with the BHP role. “The Premier has asked us for the creation of an economic statement that includes all of the projects and prospects being worked up and to develop a master plan to identify the infrastructure needs and how best to compete for increasing the population of the state,” Carter said.
“The state that wins the race to get the skills base right will be the state to move ahead.”
The government has advertised for a new port at Port Bonython – but the surrounding infrastructure needs to be properly developed as well.
Carter says it is fundamental for the funding of infrastructure that financiers have the confidence to invest in the state. About WorkCover, Carter says the corporation has been reshaped as far as the board has been able and taking it to the next level has led to the legislative proposals.
A government Bill to take the reconstruction of that business to its final stage should be passed soon.
Carter and his wife Briony have three girls and a boy aged between 14 and 22. He is on the councils of St Peter’s and Wilderness as he likes to be involved in what the children are doing. “Both schools are very strong,” said Carter.
He also thinks it’s a very strong time in the economic development of the state. “It’s a very positive time for SA. I like to be involved so I can try to make a difference.”
Comments
Bruce carter was made chairman of the WorkCover board in 2003, that makes it 5 years ago and you will find the haemorrhaging started then.
Posted by Tony Romeo on 7/06/2008 12:03:35 PM
People in this state must wonder in amazement why Bruce Carter was not promoted earlier with his track history as the chairman of the Workcover Board. He deserved to be promoted and nicknamed "The Golden Boy" of South Australia. The track record of Workcover with its amazing unfunded liability growing at approximately $2 million dollars a week while he was at the helm. What an amazing feat.
Posted by Steve Christos on 9/06/2008 5:49:39 PM
Workers to suffer for
South Australia's WorkCover troubles
by Bob Briton
South Australia's WorkCover Corporation now has, according to
media reports, unfunded liabilities estimated at $600 million. In
September the figure was put at $419 million. As recently as
1999/2000 the amount was just $22 million. All sorts of reasons
are given for the blow-out but state parliamentarians and the
bosses' media are united in their choice of remedy: fewer workers
will get payouts and they will be sent back to work sorer and
sicker.
The unfunded liabilities in question are the difference between
WorkCover's assets and the compensation claims it anticipates
having to pay out over the next 40 years! Corporation chairman
Bruce Carter has predicted that the estimate could go even higher
when the cost of asbestos claims becomes clearer early next year.
These may add between $50 million and $590 million to the
equation.
The Liberal opposition has tried in vain to present the
predicament to the electorate as a looming collapse along the
lines of the State Bank over a decade ago. That fiasco required a
massive taxpayer funded bailout and kept Labor out of office for
two terms. However, the situation with WorkCover is not a crisis
of those proportions and the Liberals' credibility on the issue
is not helped by an examination of their role in government.
In 2001 the Libs worsened WorkCover's cash flow by reducing the
levy on employers to an average of three per cent of payroll.
They also handed the bosses a rebate valued at $25 million.
Together these measures cost more than $160 million. While
current Industrial Relations Minister Michael Wright is quick to
point this out, neither he nor the WorkCover Corporation' s
chairman is talking about putting the levy up.
"We are sure that the current average levy rate of three per cent
should ensure clawback of the unfunded liability within 10
years", Mr Carter told The Advertiser last week.
Fewer payouts
In the same interview he said that WorkCover would put an
emphasis on making fewer payouts to workers and getting more
people back to work. The clear implication is that the
corporation's problems are the fault of malingering workers. This
strategy is to be pursued even though the public discussion of
the causes of WorkCover's woes scarcely mentioned the role of
claims. Naturally enough, safety standards in the State's
workplaces were not discussed, either.
In fact, none of the reasons trotted out for the present
predicament dealt with these aspects of the scheme. The WorkCover
chairman cited changed accounting measures. Other reports
mentioned overseas share market investments that went bad. In
spite of calls for greater transparency and accountability, the
Minister is keeping the details quiet. However, some conclusions
might be drawn from the recent record of Victoria's WorkCover
Authority.
Workcover profits Like its Victorian counterpart, WorkCover
currently has positive cash flow. Last year, Victoria's WorkCover
Authority posted a record $504 million profit from its key
insurance operations. However, it ended up $316 million in the
red for the year overall after losing $437 million on global
equity markets and another $383 million by making what The
Herald Sun called "wrong assumptions about the economy".
Who should pay for WorkCover's misplaced faith in capitalism? If
the bosses, the media and pollies from the major parties have
their way it will be the workers who will suffer through reduced
levels of compensation for work-related illness and injury.
And why should there be so much work-related illness and so many
injuries? What about 40 years of workplace safety, jailing of
bosses responsible for workplace deaths, and not speculating on
the markets with WorkCover funds?
Anxiety Becomes A Long-Term Issue For Detention Centre Staff
More than 60 former staff at Australian immigration detention centres have reported long-term mental health problems associated with the stress of the job.
The ABC1's Four Corners has revealed 62 cases of mental illness among former guards at the Woomera and Baxter detention centres in South Australia.
The program documented the impact on staff of riots and violence among detainees in recent years.
One former guard is suing for damages, and the former managers of the centres could face a series of other claims.
A doctor employed at Woomera, Simon Lockwood, says years on he is still counselling many former staff.
"I saw severe depression. I saw post-traumatic stress disorder, anxiety disorders," he said.
"I saw a lot of alcohol abuse - people would drink to try and cope with what they saw.
"I saw a lot of relationship difficulties and marriage break-ups and it was a very toxic environment for a lot of the officers."
Several former employees, including Clive Skinn, say the ongoing riots and violence damaged their own lives as much as it did the detainees.
"I was on WorkCover for 18 months and then I tried to do myself in four times over it actually," Mr Skinn said.
"The only thing that kept me going was me kids and ... it's something I never ever want to see or do again. I don't recommend it to anyone."
The former guards say they were given inadequate training to deal with the violence and challenges the job involved.
One former manager at Woomera, Allan Clifton, says most guards were not equipped to deal with the conditions.
"The majority of officers, given that they were poorly trained, were very, very good people who were trying to do the best they could under difficult circumstances," he said.
"We had a group of officers that had come from prisons, in particular Arthur Gorrie in Brisbane, who belonged to the so-called boys club. They were all about crash and bash, crash and bash, that's the only way to do it."
The Immigration Minister, Chris Evans, says he is aware some staff are already seeking compensation.
"I think first of all, as I understand legally the duty of care is with the employer," he said.
"Certainly there may be some obligations on the department in relation to these matters, but as I understand it those are about to be tested in a court case and obviously that'll be a legal decision."
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newsNurses top injuries listArticle from: Font size: Decrease Increase Email article: Email Print article: Print Submit comment: Submit comment JOANNA VAUGHAN
November 17, 2008 12:01am
THE state's health, law and order and education workers are at greatest risk of being injured, a report shows.
WorkCover statistics in the Department of Premier and Cabinet's annual report show that in the past year, nurses were the most commonly injured workers, comprising 14 per cent of all claims.
This was followed by police officers with 10.3 per cent, primary and secondary teachers (8.6 per cent) and personal care assistants (4.2 per cent).
Ambulance officers were at No. 5, firefighters at No. 6 and prison officers at No. 9.
The statistics follow a report released last month indicating many police officers urgently needed help for psychological distress and a significant number risked illness because of their working environment.
Public Service Association general secretary Jan McMahon said she was not surprised at the statistics because workers in the public sector were dealing with increasing pressures.
"Most public sector jobs are struggling to survive in an under-resourced environment," she said.
"It doesn't matter what the job is, they are dealing with greater pressures as government forces agencies to do more work with less resources. What we are seeing is every agency has been told to find savings. Their workload hasn't gone down, they have to do it with less."
Ms McMahon said the figures did not reflect the true number of workers who were injured.
"We are finding that many people don't even lodge a workers compo claim because it is too difficult," she said. "People now take sick leave or they resign."
The report also shows:
THE majority of claims were for sprains and strains, followed by psychological issues.
TOTAL workers compensation claims expenditure for 2007/08 was $105.8 million, an increase of 16.6 per cent in the past year.
A TOTAL of 4675 new claims were recorded last year compared to 5024 in 2006/07.
THE median age of claimants was 46.7.
A spokeswoman for Industrial Relations Minister Paul Caica said some occupations were subject to above-average pressures and vulnerabilities.
