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Australian Services Union
Taxation Officers’ Branch
116 Queensberry Street
Carlton South VIC 3053
P: 03 9347 6080
W: www.asutax.asn.au
Branch Secretary: Jeff Lapidos
E: Jeff.Lapidos@asutax.asn.au
M: 0419 335 675
The Secretariat
Review of the Safety, Rehabilitation and Compensation Act 1988
Department of Employment and Workplace Relations
20 December 2024
Dear Panel
ASU Tax submission for Comcare Review 2024
The Australian Services Union makes this submission based on the work of our Taxation Officers’
Branch with the Comcare scheme. We describe the awful experience commonly encountered by
ATO employees who make workers compensation claims. We explain the ATO’s strategy to reduce its workers compensation premium from one of the highest of any Agency in the Australian Public
Service to one of the lowest. We show this has been accomplished by unfair and unreasonable methods. We ask the Panel to reject the ATO’s approach to administration of its workers compensation claims and return it to Comcare.
Employees experience of the ATO’s administration of the scheme
The ASU has represented many of our members with their workers compensation claims over several years. We only lodge claims for ASU members if they have a reasonable case. We do not engage external solicitors to run their claims. We do this work ourselves. We can say with conviction that our members experience has been uniformly poor. We have found ATO delegates will refuse a claim based on the flimsiest of evidence, often by preferring the evidence of their own doctors.
The ATO’s Comcare delegate has refused almost every claim we have lodged. We have then requested a reconsideration. The ATO delegate invariably refuses our request for reconsideration.
We generally have applied for review by the then Administrative Appeals Tribunal. The ATO
Comcare delegate is then represented by an external firm of solicitors. We have usually been able to negotiate a settlement of our member’s claim during the Tribunal processes, which invariably is at a significant discount to the amount that should have been authorised in the first place.
The above description does not do justice to the experience the ATO workers compensation process imposes on our members. The ATO Comcare delegates invariably do not accept the evidence of the employee’s treating doctor(s) and instead arranges their own doctor(s), whose assessments they will prefer. The ATO delegates calls their doctors independent. We do not accept this characterisation.
There is nothing independent about these doctors. The ATO selects them. The ATO briefs them.
The ATO pays them.
The ATO Comcare delegate invariably engages in medical warfare with our member. The Comcare delegate will as a routine, formally require a copy of our member’s medical records. This creates delay and imposes what we regard as an unnecessary cost on our member’s doctor(s). The Comcare delegate has then invariably required our member to have their health (claim) assessed by a
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doctor(s) appointed by the Comcare delegate. We have found these ‘Comcare’ doctors take a partisan approach to the assessment of our member’s claim. We had the experience of a rheumatologist ascribing an injury to excessive knitting with wool based on insufficient evidence, rather than finding an obvious overuse injury from excessive keying and mousing. This is typical of the medical bias and prejudice we have encountered.
The ATO’s administration of the scheme then requires our member to obtain their own medical evidence to refute the assessment of the ‘Comcare’ appointed medical specialist(s). This imposes unnecessary and excessive costs on our member. The ASU does not cover such medical costs for our members.
If our claim went to the AAT for a conference, we were then invariably required to prepare a
Statement of Facts, Issues and Contentions (SFIC). The ASU approach to this task has been to engage a barrister to prepare it for us because of the complexity involved. The ‘Comcare’
Respondent prepared their SFIC in response. If another AAT Conference did not resolve the dispute, we would then have to attend a directions hearing for a timetable for the exchange of evidence and outlines of submissions and the setting of dates for a hearing.
These processes are extraordinarily stressful for the employee, who does not know the outcome, will be concerned about the cost to prepare witness statements from doctors, and the prospect of appearing in person before the Tribunal for the purpose of cross examination by a hostile
Respondent and possible re-examination.
Governance arrangements – use of a provider such as Gallagher Bassett
The ATO uses an outsourced provider, Gallagher Bassett, to administer workers compensation claims for its Comcare delegates. Gallagher Bassett does far more than simply administer claims, such as ensuring correspondence is issued in a timely manner. Rather, Gallagher Bassett is actively involved in developing a strategy and tactics for the Comcare delegate, which enables the delegate to refuse as many claims as possible.
Employees’ experience of the scheme – an alternative approach
The ATO has implemented an ‘Early Implementation Program’ which it offers employees in place of making an application for workers compensation or if the employee agrees to withdraw their workers compensation claim.
We consider this Program has merit. The Program has advantages for both the ATO and employees, but it also has disadvantages for employees, as well as raising integrity issues.
The advantage for the ATO is that the Program has significantly reduced the number of workers compensation claims made, with a consequent reduction in the ATO’s workers compensation premium. The Program operates with little direct expenditure. The cost of each claim averaged
$616 over each of the 22-23 and 23-24 financial years for 60 and 61 employees in each year respectively. The total expenditure was $37,048 in 22-23 and $37,553 in 23-24. The staffing cost of administering this Program is in addition to this. The ASU is aware that the ATO may grant miscellaneous leave with pay or grant additional personal leave credits to participants as part of this
Program, but we have no information about the extent of this.
The dilemma for employees is in having to choose whether to accept the offer to participate in the
ATO’s Early Treatment Program or lodge a workers compensation claim. If the employee elects to participate in the Early Treatment Program and then lodges a workers compensation claim for the same illness/injury, the ATO expects that employee to refund the payments made to them.
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One of the reasons an employee may choose the Early Treatment Program is the uncertainty, inconvenience and lengthy delay which is faced if the choice is made to lodge a workers compensation claim instead.
If the workers compensation scheme operated fairly, quickly and effectively, early treatment programs of this nature, i.e. external to the Scheme, would not be necessary. The ASU recommends the Panel consider amendments to the SRC Act that enable the compensation scheme to provide employees with prompt financial support to manage their illness/injury, even if this is restricted to claims which may be considered minor, so it can operate in a manner similar to the ATO’s Early
Treatment Program.
ATO evidence which corroborates our submissions
The ATO’s statistics bear out the ASU’s submissions to the Panel. The ATO has reduced its Comcare premium from 2.79% in 2014-15 to 0.1% in 2023-24. The ATO premium has gone $51m in 2014-15, from one of the highest in the Australian Public Service to one of the lowest, some $2.5m in 2023-
24.
The ATO has provided the ASU with the following details of its recent Comcare claims experience.
Claims granted at first instance
22-23 23% accepted
23-24 24% accepted
Claims affirmed on reconsideration
22-23 98% affirmed
23-24 97% affirmed
Claims affirmed during an Administrative Appeals Tribunal process
22-23 73% affirmed
23-24 63% affirmed
ATO Comcare premium rate
22-23 0.13% of payroll
23-24 0.10% of payroll
ATO historical Comcare premium experience
Premium rates 2010-11 2011-12 2012-13 2013-14 2014-15
ATO premium rates 1.7% 1.72% 2.00% 2.37% 2.79%
($30,806,492) ($34,196,043) ($35,975,747) ($49,703,346) ($50,913,567)
Premium rates for 1.2% 1.14% 1.77% 1.81% 2.12%
all agencies
combined
Conclusion -Employers should not decide workers compensation claims against them
The ASU is opposed to Comcare continuing the arrangement of delegating its decision-making powers to the ATO. The ATO has taken advantage of this delegation to artificially contrive the refusal of a very high proportion of the workers compensation claims made by its employees. The
ATO’s express purpose has been to divert funds from its Comcare premium to its general operations.
It has not done this by settling claims promptly and supporting its employee s to return to work as soon as is practicable, which should be the goal.
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The ATO engineered this premium reduction through a deliberate strategy. The ATO took on
Comcare’s decision making powers. It established a small team in its HR business line called ATO
People. The operatives in this team are the delegates for making Comcare’s decision on workers compensation claims made by ATO employees. These Comcare delegates are not independent of the ATO. Their work and decisions are closely monitored by senior ATO management.
The ATO has engaged a sophisticated insurer, Gallagher Bassett, to administer its workers compensation claims. Gallagher Bassett employees give ATO Comcare delegates advice on how to respond to each claim, and do the detailed work involved. The result is that ATO delegates rejected
76.5% of all claims lodged over the 2022-23 and 2023-24 years. This hard-line approach was maintained at the reconsideration stage with 97.5% of decisions affirmed. It is only at the AAT stage that ATO delegates were prepared to soften their stance, by accepting some 34% of appeals, in full or in part, over these two financial years.
We have described how the ATO delegates, on the advice of Gallagher Bassett, have achieved these results. There is nothing compassionate about their approach. The ATO treated its employees need for workers compensation as harshly as could be imagined in the Australian context. The ATO approach does not support its employees when they are at their most vulnerable. It is mean spirited, but it enables the ATO to administer the Comcare scheme cheaply and divert funds that should go to support its injured and ill employees to instead support its general operations.
We urge the Panel to reject the ATO’s administration of the Comcare scheme, return the delegation to Comcare, reject the use of ‘administrators’ such as Gallagher Bassett and instead use properly trained and supported Comcare employees to administer the Comcare scheme fairly and compassionately.
Please contact me if you have any questions about this submission.
Yours sincerely
Jeff Lapidos
Branch Secretary
ASU Taxation Officers’ Branch
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