MORE NATIONAL EMPLOYERS TO MOVE TO COMCARE SCHEME

On 19 March 2014, the Federal government introduced the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (Cth) into the House of Representatives.

The Bill proposes to allow companies operating across state borders to leave state worker’s compensation schemes and join the federal regime under Comcare. Unions which represent workers in industries such as mining, manufacturing and building which involve heavy work and a higher rate of physical injuries, are opposed to the Bill because they say that Comcare was developed to compensate government workers who traditionally have been in lighter occupations. They say that the benefit regime under the Comcare scheme is less suited to severe injuries.

Certainly, common law rights under the Comcare scheme are derisory compared to the Victorian Workcover scheme for example. Under the Comcare scheme, workers who are injured as a result of the negligence of their employer are limited to claiming damages for pain and suffering to a maximum of $110,000. Workers injured under Victorian law, can claim pain and suffering damages of up to approximately $500,000 and this figure is indexed every year whilst the damages figure under Comcare was set in 1988 and has not been increased since.

Essentially workers common law rights under the Comcare scheme are being abolished by stealth because as the value of the pain and suffering amount is eroded fewer workers are choosing to sue for damages and electing to pursue their lump sum entitlements. This is a win for employers who without an effective common law damages system are under less pressure to provide safe workplaces. In other words, the common law system of financially penalising employers who provide unsafe systems of work is being eroded.

Many workers support groups are calling on the Federal Government to reinstate the moratorium imposed by the Labour Government in 2007 which effectively banned new entrants to the scheme.

In addition, unions are calling on the Federal Government to implement the recommendations of the Hanks report which was handed down in February of 2013, following a review of the Safety Rehabilitation and Compensation Act. (https://employment.gov.au/safety-rehabilitation-and-compensation-act-review-0).  Peter Hanks QC, made over 100 recommendations regarding the Comcare system, many of which are still outstanding.

One of the most important recommendations to be implemented, which is in fact outstanding since 2007 when Julia Gillard as the then Workplace Relations Minister commissioned an earlier review, is with respect to the introduction of time limits within which Comcare and licensees are obliged to issue determinations regarding claims for compensation.  The Safety Rehabilitation and Compensation Act 1988 was amended in 2011 to provide for time limits which were to be passed by regulation. Unfortunately the Regulations are yet to be introduced. This failure to implement time limits for employers creates a situation where workers can wait for many many months before Comcare issues a determination. In the interim workers are left without income which can and has led to very significant financial and emotional stress.

Under the Victorian Workcover scheme, if an employer has not made a decision within 60 days an application can be made to the Workcover Conciliation Service.

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