NSW Labor sinks boot into workers' compensation

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BY JENNY LONG

SYDNEY — Unions at the NSW Labor Council meeting on March 29 vowed to campaign against changes to workers' compensation which the state ALP government is attempting to ram through.

Industrial relations minister and ALP right faction heavyweight John Della Bosca announced the changes on March 27 and tabled them in parliament on March 29. His intention was to force the changes through with minimal union consultation and debate within the state ALP caucus.

Brian Miller from the Construction, Forestry, Mining and Energy Union told the Labor Council meeting that enforcement of safety standards to prevent injuries by Workcover, NSW government was currently a disgrace because the government was too busy pandering to the big end of town to make bosses comply with workers compensation premium payments or safety.

CFMEU state secretary Andrew Ferguson and Australian Workers Union greater NSW branch secretary Russ Collison both emphasised the employers' lack of compliance in paying workers compensation premiums. The premiums are set at 2.8% of the payroll but many employers underpay their premiums by only declaring some of their employer, or by not paying premiums at all. Ferguson and Collison also complained that Workcover doesn't have employ enough inspectors, reflecting the state government's lack of interest in enforcing safety standards.

The key changes proposed are a serious attack on the rights of workers to access the courts to settle compensation claims.

Changes being proposed include the introduction of binding and unaccountable medical panels to assess impairment levels, and a new threshold of impairment. Workers will be forced to make more claims under the statutory no-fault scheme which sets the benefits which workers can receive.

A Claims Assessment Service is to replace the Workers' Compensation Resolution Service and will resolve disputes over statutory claims and set damages at common law where fault is not at issue. This will be based on the Motor Accident Authority (MAA) Scheme in NSW. Of all motor accidents that have occurred in NSW between October 5, 1999 and March 28, 2001, only one matter has been determined by the MAA's claims assessment service, and two victims have received settlements.

If a worker has more than 25% total impairment as determined by a medical assessor and can prove to the new Claims Assessment Service commissioners that their employer was at fault, then they will be able to go to court. However, commissioners will only consider arguments on paper and behind closed doors without hearing evidence from workers. Only complex matters of law will be referred to the Workers Compensation Court for resolution.

Medical assessments from the worker's and the insurer's doctors will be examined by assessors appointed from the Authoritative Medical Service, who will determine the level of permanent impairment based on American Medical Association guidelines. These guidelines exclude psychological impairment, and have been the basis of outrageous denials of impairment in the case of the MAA scheme.

Currently, workers are entitled to settle claims in court when a part of their body is more than 25% impaired. Under the new plan this right will only be allowed for workers who suffer more than 25% permanent whole of body impairment. This significantly raises the level of impairment required for a common law claim. Under these criteria, according to a solicitor, Richard Brennan, who briefed the Labor Council, a worker would have to be nearly dead or a quadriplegic to qualify.

Other speakers at the Labor Council meeting emphasised the seriousness of psychological injuries suffered by workers. Jeff Derrick from the Finance Sector Union told of one member who can no longer go near a bank after going through 17 hold-ups. Banks consistently oppose claims for psychological damage and consistently lose their cases in court decisions — which will not be available to workers under Della Bosca's proposed Workcover changes.

Five hundred building workers struck against the proposed Workcover changes on March 30, shutting down a major city building project. The Transport Workers Union will begin strike action on April 2. The NSW Fire Brigades Union, which is currently locked in battle with the state government over cuts to superannuation entitlements including for dead and injured workers, will discuss taking action over the workers compensation changes at a meeting this week.

After a March 29 meeting with union leaders and Labor Council secretary Michael Costa, Della Bosca promised that the bill would be adjourned for four and half weeks to allow time for consultation with unions. Significant disquiet over the changes was even expressed within ALP parliamentary ranks.

Ironically, the measures introduced by Della Bosca's bill are similar to those introduced by the ill-fated Unsworth Labor government in 1987 which abolished the right to common law claims. A year later Labor lost the elections to the Greiner Coalition government, which attacked unions but saw fit to restore common law rights for workers compensation and lift benefit levels in 1991.