Labor's Workers Compensation Reform Bill

The Workers Compensation Amendment (Protection of Injured Workers) Bill 2017, which was introduced by the member for Cessnock, deals with journey claims, weekly payments and other matters. Labor's shadow Minister for Finance, Services and Property introduced this bill to seek to redress some of the most extreme and harmful negative impacts of the O'Farrell Government's changes in 2012 to the NSW Workers Compensation Scheme.

The New South Wales Liberal Government has a very poor record on workers compensation matters. Those opposite like to moan about the 16 years of Labor, but their real gripe was with working-class people. They took the first opportunity to go after them with punitive, regressive legislation while shielding this bastardry with the cover of their new Government's honeymoon period.

 

When the Parliament debated minor amendments by the Baird Liberal Government to workers compensation legislation in 2015, I made the observation that the rate of workplace injury is probably no lower or higher from one electorate to another and that it certainly would not necessarily fall along party lines. I do not believe for a second that there are more injured workers living in my Blue Mountains electorate compared with the Liberal-held electorate of Penrith, which is next-door. Therefore, if we assume that the rate of workplace injury is consistent from one pocket of the State to the next, we must ask ourselves what it is about these constituents and their needs that attract such antipathy and disdain from the Government. I wager that injured workers—not the property developers, business lobbyists and toll road operators the Government members opposite like to cosy up to—would find it very difficult to get an audience with their local Liberal member.

 

That is the difference between Labor and the Liberal Party, which is illustrated by the introduction of this bill by the member for Cessnock. For example, I am very concerned to read in the Unions NSW review of the Liberal Party's workers compensation framework that tens of thousands of injured workers are estimated to have been excluded from the compensation arrangements to which they ought to be entitled since the 2012 changes were introduced by the O'Farrell Government. Delving further into the Unions NSW review makes for distressing reading. For the benefit of members opposite who refuse to engage with the trade union movement or even with their own working class constituents, I will read out section 2 of the report, which deals with the mental health impacts of the Government's legislation:

 

For many injured workers, the feeling of absence of hope and helplessness that arises from their severe pain, constant abuse from the employer or insurer, constant denials of even the most basic medical and other care or services, extreme financial distress and even the prospect of permanent disability may cause such prolonged periods of extreme stress or emotional upset that they have suicidal behaviour.

 

The review goes on to lay the blame squarely at the feet of the O'Farrell Liberal Government's 2012 amendments and the removal of an ongoing financial and medical safety net. It is in that context, with injured workers reporting suicidal thoughts, that I am absolutely gobsmacked to note that in the 2016-2017 annual report of iCare—the Liberal Government's insurer—there is a massive $2 billion surplus in the organisation's financial position when iCare's liabilities are deducted from its assets. If at June 2017 the Government has $2 billion in cash and assets to hand over, above its anticipated liabilities, it defies belief and good conscience that the Government would seek to throw more people off the scheme than it did back in December last year—six months after the reported surplus. This proves beyond a doubt that the scheme is not overdrawn or in a weak financial position at all, as the Liberal Party would have people believe.

 

There is no justification for the cruel tightening of eligibility criteria that excludes workers with long‑term injuries and disabilities. This Government is going after injured workers because of their well-documented antipathy and distain for working-class people. The anti-worker ideologues controlling the legislative agenda of this Government are, on a spectrum, not so far removed from the Anarcho-capitalists who would say that workers deserve no assistance or protection whatsoever. Sadly, the anti-work blame game that originates within the twisted ideologies of the lunar-right faction of the Liberal Party is given legitimacy by this Government's legislation and seeps into the consciousness of human resources [HR] managers in industry and the public service.

 

I was very concerned to hear about an injured worker employed at Parliament House, whom I will call Gillian. I will change some of the details of this story to protect her identity. Early one morning, well before the 9.00 a.m. expectation, Gillian arrived at work in Parliament House and sat down at her desk. She checked some emails and after a short time she went back to her car. She injured her wrist there and after seeking first aid, went to the Department of Parliamentary Services to inquire about workers injury compensation and some time off to recover.

In the first instance she was told that it looked to them to be a journey claim and they refused to progress it—despite the fact that the injury occurred on the premises of Parliament House. Her journey to work that morning had well and truly ended. In the end the Department would only progress her claim after she made the observation that she had logged on to her computer that morning, which proved that she was on duty at the time of the injury. It is absurd and unjust for an injured worker to have to fight basic for employer assistance.

 

The Government has moved the bulk of its workers onto the kind of flexible workplace arrangements that benefit HR departments, such as having work emails on workers' smartphones and paying small allowances in lieu of overtime and fixed daily hours, but on the other hand it seeks to implement rigid interpretations of when and where a working day begins or ends to deny it has a duty of care to an injured worker. This example of low- to medium-level workplace bastardry and harassment of vulnerable workers is repeated throughout government, and in business and industries of all sizes. With this private member's bill Labor seeks to address the cruel and punitive measures in the Government's legislation, and to ensure that the recovery and livelihoods of workers are not held to ransom by insurers and uncaring HR managers.

 

The bill makes four key changes to the framework. Labor will remove the five-year cut-off date for weekly payments to injured workers in section 39. It will redefine "suitable employment" in part B of section 32A to make it necessary that a job actually exist and is in reasonable proximity to the injured worker. Labor will amend section 248 to rebalance the responsibility of the employer so as to not allow for termination of an injured worker after six months without offence. Finally, Labor will restore coverage for journey claims. As for the five‑year cut-off, nearly 4,500 workers with a long-term injury or disability have been thrown out of the safety net and made to fend for themselves by this Government. There is no sound basis for this and it is unconscionable. All of these workers have been tested and shown to be still suffering from injury, and are unable to find suitable work. I defy any member of this Government to stand here and record in Hansard their belief that this is fair or just. When it comes to finding suitable employment, the deck is stacked against the injured worker.

 

I record in Hansard the story of Brenda, whose name I have changed to protect her identity. She came to see me in my office about a workplace injury sustained in her role as a surveyor. One morning at work she suffered horrendous injuries when a truck became caught in power lines and brought down those powerlines, throwing her about 10 metres into the air. When she fell to the ground she was close to death. She broke all of the bones in her face and her tendon was torn off her wrist. As well as horrific physical injuries, she now has post-traumatic stress disorder. Her marriage has broken down as a result. The treatment following the accident was just awful. On the afternoon of the accident her employer came into the hospital and asked her to complete a report. Then she felt pressure to return to work, in spite of her injuries and a significant level of physical and psychological disability. She was told, "Because you can sit for three hours, you can work." Workers compensation? Not on your life!

 

Labor will restore some reasonable tests to the definition of "suitable". For example, the current legislation allows for the insurer to identify so-called suitable jobs that do not actually exist in the workforce market in the local area. This is another example of the jaw-dropping stupidity of the Liberal Government's 2012 reforms. An injured railway worker from Bell in my electorate of the Blue Mountains should not be told to take a new job in Penrith, some 80 kilometres away. We will strengthen the employers' obligation to the worker injured in the course of work under their care. Too often workers are being let go after six months because they fall into the too-hard basket.

 

Labor wants employers to have an enduring responsibility to their injured workers to encourage a meaningful and productive return to work. I have referred to journey claims, but I note that it is especially important that workers are covered for claims arising from motor vehicle accidents or public transport injuries where fatigue at work is a cause of an accident to or from work. With employers demanding more and more in overtime and the casualisation of so many industries, more and more workers find themselves on our roads at all hours of the night or day after long shifts. It is absolutely appropriate that the workers compensation framework provides support and care for workers injured on their way to or from work. I commend the bill to the House.

 

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