Dave Andrews, Fremantle
The state ALP government is set to introduce long-awaited reforms to WA's workers' compensation laws in May. The reforms, outlined in a discussion paper Restoring Fairness, Balance and Certainty: Workers Compensation Reforms released in January this year, are in response to what has often been described as the worst workers' compensation laws in Australia.
However, if adopted, they will prove to be a bitter pill for the tens of thousands of WA workers injured each year.
The minister for consumer and employment protection, John Kobelke, has been attempting to woo WA unions with a few minor improvements. Weekly benefit payments will be capped at twice average weekly earnings, up from the present one and a half, and this payment will be extended to eight weeks, twice the current period. Payments will then fall by around 15% of an injured workers' average earnings.
These weekly benefit payments are still limited. The maximum prescribed amount is set at $228,000 for those with a permanent total incapacity.
Labor also intends stricter guidelines on rehabilitation for injured workers. Large companies will be required to set up programs for integrating injured employees back into employment. A worker refusing to accept this management program will have his or her compensation payments cut off.
There has been no provision made to cover workers who are injured going to or from work.
Many in the union movement remain extremely critical of Kobelke and Labor's legislation.
Ian Bray, assistant secretary of the WA Maritime Union of Australia (MUA), has described the Kobelke legislation as "still the worst workers compensation laws in Australia".
The WA Construction, Forestry, Mining and Energy Union has signaled it will call its members off building sites in protest and the union's state secretary Kevin Reynolds has been publicly rebuked by Kobelke.
The anger at the new laws is mainly caused by a severe curtailment of the right of injured employees to seek common law damages.
Currently, if an injured worker is assessed as being over 30% disabled, then he or she will keep receiving compensation and there is no cap on common law claims against his or her employer. Common law claims can only be made within six months of the injury.
Kobelke has reduced the 30% disability limit to 25% and has extended the time allowable to make a claim.
However, injured workers will face extremely difficult requirements to qualify as at least 25% disabled.
Currently an injured worker can be assessed by a doctor or specialist of their choice, with the right of insurance brokers to seek alternative medical assessments. Kobelke plans a medical panel of "experts" who will have the final say on assessments and there will be no right to appeal.
Further, these medical "experts" will be required to base their assessments on impairment, not disability as is currently done. This has been likened to determining what damage has been done to a robot or machine. No longer will pain and suffering be a determinable criteria, nor psychological damage which often accompanies long term injuries. Stress, sexual dysfunction and even inability to work are also to be excluded.
For legal specialists in the workers' compensation field such as Paul O'Halloran, the new legislation is as bad as the old, if not worse.
O'Halloran told Green Left Weekly that he predicted very few would be able to apply for common law damages. "[The new law] is all smoke and mirrors. Medical assessors are going to use an American guide, 600 pages long and incomprehensible to most, to determine impairment. Experience has already shown us that those selected for this job are more than likely to side with insurance brokers."
He was also scathing in his attack on the enormous profits insurance companies are raking in. "This is not a case where profits are declining but Kobelke's own departmental figures prove not only that insurance companies have made nearly $2000 billion in the past 20 years and their annual profit rate has increased to something around $300 million."
"Kobelke and his mates have rolled over despite the promises made to unions before and after the last state election."
O'Halloran also expressed anger at UnionsWA for meekly accepting the new proposals. With few union exceptions, UnionsWA claims it is going to wait after the next state election in 2005 to push for better reforms.
MUA member Ian Jamieson, a Socialist Alliance federal senate candidate, also condemned the approach of UnionsWA. Speaking to Green Left Weekly, he asked "how many more times does the union movement have to sit on their hands and do nothing when attacks are made on our members? When the former Liberal government introduced the current legislation there were howls in the streets, thousands protesting the hated act. What has changed?
"Why do we have to accept that because UnionsWA has mates in government, who in turn have mates in the big insurance houses, workmates and their families are going to suffer?
"I'm glad the CFMEU is going in to bat for their members and I'm sure the MUA will also take it up to the government on this grossly unfair legislation."
From Green Left Weekly, April 29, 2004.
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