WA tries to restrict injured workers' rights
By Ana Kailis
At the behest of insurance companies and employers, the WA Liberal government is attempting to curtail severely injured workers' rights to sue their employers for negligence. The move has angered the Injured Persons Action and Support Association of WA (IPASA).
Until 1993, WA workers were able to sue if their workplace injury involved employer negligence. The procedure was straightforward and limited the legal wrangling involved.
In 1993, the government imposed criteria under which workers could sue: a worker must have suffered at least a 30% disability as a result of injury and suffered a pecuniary loss of future income of at least $100,000.
The second criterion became known as the "second gateway". Injured workers had to prove to the courts that they had a case before they could sue an employer.
These restrictions had a devastating effect. According to IPASA secretary Philip Semini, in one case a worker was forced to have an above-knee rather than below-knee amputation in order to receive adequate compensation.
For others who qualify only through the second gateway, the path to just compensation is long and arduous. Unscrupulous insurance companies, constant harassment and video surveillance and, in some cases, death threats, make gaining a settlement an uphill battle.
Now the state government is attempting to limit workers' access to common law further by closing the second gateway and excluding mental illness and psychological problems from the 30% assessment.
The change follows pressure from the insurance industry, which claims that common law payouts have "blown out" in the last five years. But according to the WA Law Society and law firm Friedman Lurie and Singh, the insurance industry is distorting the statistics.
Prior to 1993, workers were able to obtain up-front lump sums ("redemptions") at a reduced rate, in lieu of future weekly compensation payments. This was under the statutory scheme.
After 1993, these lump sum payments were prevented. To maintain the advantage of settling and saving money, insurance companies have disguised ongoing compensation payments as common law claims, even when there is absolutely no negligence on the part of the employer. The so-called common law blow-out is in fact the payment of workers' regular compensation entitlement.
During the last sitting of parliament in June, a bill to close the second gateway was rushed through the Legislative Assembly. Labour relations minister Graham Kierath unexpectedly presented the bill at midnight and guillotined discussion, and the bill passed.
In the Legislative Council, where the government lacks a majority, the bill was modified heavily, resulting in a stalemate.
Thirty injured workers and their supporters gathered at Parliament House on October 22 to present a petition to Greens MLC Jim Scott. The protest was organised by Sonia Muscedere, an affected worker, and supported by IPASA, the Democratic Socialists, Resistance and Scott's office. There has been only a tepid response from the WA trade union movement on the issue.
IPASA is to draft its own bill to keep the issue on the public agenda and to campaign around. IPASA welcomes the involvement of injured workers, trade unionists and supporters of workers' common law rights. Phone IPASA on (08) 9386 5211.