Workers’ Compensation and Injury Management Amendment Bill 2012 - Second Reading
Date:Tuesday, May 1, 2012
President; Hon Kate Doust; Hon Alison Xamon; Hon Max Trenorden; Hon Nick Goiran; Hon Simon O'Brien
Resumed from 21 March.
HON ALISON XAMON (East Metropolitan) [3.50 pm]: I rise on behalf of the Greens (WA) to indicate that we will also be giving our support to the Workers’ Compensation and Injury Management Amendment Bill 2012, and also to note that we recognise that it is important that this bill is passed fairly swiftly in order to address the issues that were raised in the second reading speech.
The purpose of this bill is to address some unintended consequences that arose as a result of the legislative reform that was passed last year by all parties in this chamber. We understand that the anomalies that have arisen did not come to people’s attention until the bill was assessed by insurance companies and brokers themselves. It is very interesting that the bill had gone through, I am aware, quite extensive consultation with people who are professionals in this area, yet so complex were the implications that it could not be foreseen at that point that it would have the outcomes that it has had. I note that we can probably always rely on the insurance industry to be able to recognise when there are changes that may mean that they will not have to pay out the amount that they might otherwise be obligated to pay out, and also to identify when there will be potential impacts on premiums. As a result of that, we have this bill in front of us, which is intended to address those anomalies.
I want to remind members that when these legislative changes went through the house last time, there was unanimous support for the policy intent of this bill; that is, to ensure that workers who are injured on the job, but who find that their employer has not done the right thing and has not taken out the necessary insurance, are still able to access the statutory workers’ compensation scheme. That is a sound policy decision. It was a good policy decision to make. Some terrible stories were relayed in this place about individuals who have been caught out through these provisions and who were unable to pursue their unscrupulous employers through common law damages because their employer had simply shut up shop and moved elsewhere. This bill is designed to ensure that that situation cannot emerge again. That is obviously something that the Greens are very supportive of and recognise is a good step forward for our workers’ compensation scheme.
However, the concern has been raised that the legislation may go further than was initially intended and may deal also with people who are defined in this bill as 'deemed worker'; that is, people who do not have a straightforward employment relationship with their employer. Hon Kate Doust did a good job of summarising the sorts of people who could be considered to be deemed workers. The concern is that as a consequence of making these changes, these people may be denied public liability insurance on the basis that they are potentially entitled to workers’ compensation insurance. That is obviously not a positive thing. However, it is also important to ensure that we do not limit the access of deemed workers to public liability insurance. That is primarily because public liability is easier to get than workers’ compensation. The process for getting workers’ compensation is very rigorous. There is a threshold that needs to be realised before people can receive payments. I have not gone through the workers’ compensation system, but I have certainly represented workers who have, and I know how arduous and distressing that process can be. So we should not do anything that may limit the ability of people to pursue public liability when it may not be in their interests to pursue workers’ compensation legislation.
It is also important to ensure that we do not put onerous, expensive and unnecessary obligations on employers in relation to the level of insurance that they require. If employers need to get workers’ compensation insurance, they should get it; if they need to get public liability insurance, they should get that as well. But it would be sound to look at capping the amount for which people can be liable, otherwise people may end up spending all their money on insurance. Also, if a certain insurance category is not required, it is important that we do not place that obligation on all employers, because excessive insurance requirements are not to the benefit of anybody.
However, I do remain concerned—I have raised this in the briefing with the advisers—that the class of workers whom we are now defining as deemed workers may find themselves in a similar situation to the one that was described in the debate last year, whereby they are not eligible for insurance. I am talking about a deemed worker who is injured on a worksite, but whose employer has neither workers’ compensation nor public liability insurance and who, instead of paying out the rightful entitlements to the injured worker, simply folds up his business and starts it up again somewhere else. I am still concerned that these workers may fall through the cracks. I do not have a ready solution for that. I recognise that we are potentially talking about a very small number of workers. A deemed worker would have to be very unlucky to be dealing with an unscrupulous employer who has failed to get the necessary insurances and then decides to do a runner. But it does happen—I do not think we should be naive about that—and for those people the impacts can be absolutely devastating, not only for themselves but also for their families. We need to look at how we can institute a statutory scheme that will ensure that every worker who is injured on a worksite is able to receive some sort of statutory cover, regardless of their employment relationship. As I have said, I do not have a solution to that. But it would be good to get some indication from the minister about possible remedies for these workers apart from their potential to make a common law claim.
I am also interested to hear further from the minister about what measures are being taken to pursue non-compliant employers. Frankly, we would not need to have this legislation if all employers met their obligations and paid their insurance. I am aware that there is a push from industry to have non-compliant employers dealt with quite harshly, because if employers can get out of paying insurance, they can undercut or under-tender other more reputable employers, and what they are doing in that instance is simply shifting the burden on to the taxpayer, or, worse, on to the injured worker, who has no recourse and has to live with that. So I am interested to hear more about what, if anything, is being done to address the issue of non-compliant employers. I, for one, would be happy to see increased penalties for non-compliance. I would also be happy to see some sort of education program for employers about their obligations to ensure that they have appropriate levels of insurance.
I am aware that a number of small operators may be oblivious of the fact that they simply have not met their insurance obligations. However, when people get injured and do not have recourse, the consequences are very serious. It is therefore very important that we give priority to making sure that people do the right thing.
I share Hon Kate Doust’s concerns about the other issues that relate to fly in, fly out workers and I want to make sure that they get resolved. I realise that this legislation had to be dealt with very quickly and that because it has retrospective provisions, which I support, it was all the more important to deal with just the immediate issues that have arisen. However, we are talking about a potentially significant number of workers who need to have clarified their workers’ compensation entitlements, particularly for when they go overseas. This matter needs to be remedied pretty urgently. I will be very interested to hear from the minister about the government’s time frames for prioritising that and whether it is likely to come up at the next round of workers’ compensation reform or sooner, or if it is not intended to come up at all. I will be disappointed if that is the case because I believe it needs to be addressed.
I again indicate that the Greens support this legislation. We still support the original policy intent of what was attempted to be achieved last year, which was to make sure that workers who are injured at work and whose employer is uninsured will not suffer as a result. I want to make sure that deemed workers can access some sort of entitlement if they happen to also work for an uninsured employer who has not done the right thing and I am also interested to hear more about what is being done to ensure that all employers are meeting their legal obligations to ensure that they have the necessary insurance in place to protect workers who are injured at their work site.
Debate interrupted, pursuant to standing orders.