Ian Jamieson, Fremantle
With the support of the Greens in the Western Australian Legislative Council in October, Labor Premier Geoff Gallop's government finally succeeded, after four years, in getting its much-vaunted workers' compensation legalisation adopted. The legislation, however, is widely described in union circles as the "worst compensation laws in Australia".
There had been good cause for anger by workers at the previous compensation laws introduced and amended by the Court Coalition government in the 1990s. Earnings for injured workers were reduced after four weeks off work and the amount of compensation payable was capped leaving a long term maimed or injured worker and his or her family at the mercy of the welfare system.
There were penalties for non-compliance with insurance companies' orders relating to medical requirements and restrictions were placed on injured workers who sought a common law claim against a negligent employer.
Under the new legislation, there are few changes that will benefit an injured worker. Labor consumer and employment protection minister John Kobelke has claimed that the government is delivering an extra $130 million to the system by extending full workers' compensation payments from four to 13 weeks and by increasing the overall cap on allowable compensation.
However, after 13 weeks an injured worker "steps down" to a lower compensation rate, and there is still a cap on the total compensation package. The underlying assumption behind these measures is that long-term compensation claims are being "rorted" by "malingerers". Very little evidence has been produced to back this assumption.
While those who suffer short-term injuries have a little more relief financially, Labor's legislation directly penalises those who experience long-term injuries.
The previous law set two avenues, or "gateways", that allowed access to common law claims. If the injured worker was assessed at over 30% whole person injury (WPI) then an uncapped common law claim could be pursued if the insurance company agreed to such an assessment. If the WPI was found to be within 16-30%, the maximum claimable was $284,000. No common law claims could be made if WPI was below 16%. Assessments could be made by competent medical specialists.
The new laws have set a gateway at 15%. However, far from enabling many more workers seeking redress through common law, the new workers' compensation laws make it almost impossible to hurdle the 15% barrier.
Under the old laws, the term "disability" was used as a yardstick. Disability included a broad scope of related medical and psychological problems that determined WPI. Pain and suffering, sexual dysfunction and the psychological effects of injury or illness such as financial, social and family pressures which are very common in long term compensation cases gave a rounded view of assessing and determining disability.
Labor has scrapped the use of disability in favour of a much narrower term — "impairment". Psychological effects, pain and suffering, and sexual dysfunction are excluded from assessing WPI.
Further, the determination of WPI's will now be in the hands of an "approved medical specialist", handpicked by government bureaucrats. No longer can appeals to other medical experts be sought.
Kobelke has boasted that the new laws are likely to reduce the number of workers accessing common law compensation by up to 70%. Compensation lawyers believe the real number denied access to be closer to 90%.
So thousands of injured WA workers are going to be worse off under the new laws. Given that at least 40,000 people are maimed and fall ill at work each year in Western Australia, the result will be catastrophic.
During the four years that Gallop and Kobelke were promising a fairer system, insurance companies made a massive $1.236 billion profit. Now, Labor will give these gougers even greater buckets of money through restricting workers' rights to common law.
It is also very disappointing that the Greens voted for Labor's new laws. It's all very well for Greens MLC Jim Scott to claim he delivered an extra $7 million in reforms and still claim the package is unsatisfactory, but the Greens' have helped condemn many thousands to an uncertain and at times frightening future.
[Ian Jamieson is a member of the Maritime Union of Australia and the Socialist Alliance.]
From Â鶹´«Ã½ Weekly, November 24, 2004.
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