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Submission to the 2024-2025
Independent Review of the Safety,
Rehabilitation and Compensation
(SRC) Act 1988.
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About the AMWU
The Australian Manufacturing Workers’ Union (AMWU) is the primary union representing
Australian manufacturing workers. We are 60,000 members strong, and we live and work in every region and city of the country. The AMWU represents a range of members covered by the Comcare scheme including mechanics, boilermakers, fitters, trimmers, machinists, maintenance workers, aircraft mechanic engineers, administrative officers, vehicle builders, fabricators, electroplaters, process workers, scientists, spray painters, toolmakers, analysts, plumbers, planners, welders, operators, panel beaters, crane drivers, assemblers, factory workers, drafts people, painters, riggers, and laboratory technicians working across organisations such as the Department of
Defence, Department of Parliamentary Services, ANSTO, CSIRO, Royal Australian Mint, and with self-insurers including Virgin, Linfox, John Holland and Thales.
Executive Summary
The AMWU welcomes the opportunity to respond to the issues paper concerning the independent review of the Safety, Rehabilitation and Compensation Act (1988). Our submission emphasises the need to strengthen the Act to better support injured workers, including the inclusion of objects and principles that will create a worker- centric scheme in line with international best practice in workers’ compensation.
We endorse the principles and provisions in the ACTU congress position on workers’ compensation, including Comcare, and refer the panel to this paper.1
In particular we reiterate our endorsement of the following statements from the ACTU congress:
All workers who are injured or become ill in the course of their work have the right to the financial, medical, rehabilitation and vocational support necessary to fully recover, rehabilitate and return to meaningful work. Unions are committed to pursuing legislative protections which ensure there are decent, fair and appropriate work health rights for all workers.
Effective rehabilitation and return to work programs, as well as the provision of economic security through workers’ compensation arrangements, are critically important to injured workers, their families and the wider community.
Workers’ compensation should be available on a no-fault basis where an injury ‘arises out of or in the course of employment’, including where it arises from the aggravation or exacerbation of an existing injury or disease.
1
ACTU (2023) Healthy and Safe Work. Retrieved from: https://www.actu.org.au/wp-
content/uploads/2023/12/ACTU-Congress-2024-Healthy-and-Safe-Work.pdf pp. 21-28.
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Comcare
The SRC Act 1988 (the Comcare scheme) is almost 40 years old and no longer reflects the needs of injured workers. This is in part due to changing work arrangements and the entry of non-Commonwealth employers as self-insurers, and the change in working conditions including more diverse working environments and the cessation of the
Commonwealth defined benefit scheme. The legislation has also failed to keep pace with emerging evidence which supports best practice, leading to significant delays in the provision of treatment of injured workers and high numbers of prolonged disputes.
The AMWU notes that two separate reviews of the SRC Act were conducted in 2012-
2013 (the Hawke and Hanks reviews) and that the AMWU provided a submission and detailed responses to each of the recommendations made in the Hanks Review. We note that none of these recommendations were implemented, and that the SRC Act is now long overdue for review and genuine reform that can improve the experience of the scheme for injured workers. We are hopeful that this review process will result in changes to the scheme that ensures Comcare acts as a model of best practice in workers’ compensation and most importantly, improves the lives of injured workers.
Evidence to support the following key recommendations is drawn from surveys of and interviews with union members as well as scholarly literature regarding aspects of workers’ compensation relevant to Comcare and this review.
Key Recommendations
I. Renaming the SRC Act the Commonwealth Workers’ Compensation Act.
II. Ensuring any primary objective in the Act is worker-centric.
III. Clearly define the term ‘worker’ for the purpose of the Act.
IV. Genuine tripartite consultation including in license application and renewal.
V. Access to Common law.
VI. Removal of self-insurers from the scheme/moratorium on new non-
Commonwealth entrants.
VII. Improvements to the claims management process, especially timely review of
claims.
VIII. Introduction of provisional liability.
IX. Best practice suitable duties/return to work support and provisions.
X. Redefining early intervention to ensure it cannot be used to deter or mislead
workers’ from making a compensation claim.
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Workers’ experience of the scheme
For the purpose of this review the AMWU gathered evidence of workers’ experience of the Comcare scheme through surveys and interviews with members of our union.
Surveys and interviews drew on the questions provided in the SRC Act Review Issues
Paper, and the responses demonstrate that overall workers have a negative experience of the Comcare scheme. The following stories each demonstrate key areas for reform and point to systematic, rather than isolated problems with the
Comcare scheme. The following sections from page 15 onwards address each question from the discussion paper, describing how these experiences can be addressed by the review.
Member stories
Holly’s2 story – speaks to efforts by self-insurers to deter workers’ from making a claim, issues with step downs, and selection of independent medical examiners
(IMEs): ‘they've wiped their hands of this and [the doctor] said I’m going to be injured for the rest of my life’.
• Holly, 63, was injured at work in May 2023.
• Holly’s experience with the company medical assessor and nurses assigned
to her case was very poor. Holly was sent to a “medical assessor who is
supposed to be neutral, he was anything but neutral. He left out important
details and said I did not injure myself at work. I don’t know how he would
have known that. He was rude to me, he was bully, and he had something
against me from the minute I stepped in.” She was also assigned nurses who
attended her doctors' appointments despite her asking for privacy.
• Holly’s experience highlights issues with self-insurers’ use of IMEs: “This
company is self-insured. They look after all the paperwork and they have to
follow the rules of Comcare, but they don’t follow the rules of Comcare. I have
been to 5 specialists, and they haven’t said anything like what this man said.
He said that I have had this injury for decades. I have worked with the
company for 7 years. I definitely injured myself at work.”
• “[The company’s medical assessor] said they don’t have to pay me. So, they
cut off my payments. Now I’m living off annual leave and once I’m off annual
leave they will fire me.”
• Holly was pressured into not making a claim and signing up to an alternative
scheme run by her workplace. This was a common practice by her self-
insurer: “They wanted me and other workers to not report the injury at all.”
Instead, the self-insurer told workers’ they would be signed up to an
2
Name has been changed due to fear of reprisal from employer.
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alternative scheme: “there is this other scheme they get people to sign up for
means that they are not reporting injuries.”
• Referring to another colleague, Holly noted that when she asked if she was
under Comcare: “she said, “no I’m on the other scheme”. The one where I pay
my own bills, and they reimburse me. They get you sign this 2-page document,
you pay your own bills and they reimburse you and then they get you back to
work as soon as you can.” Holly notes this is to keep claim numbers low, “And
that’s their way of ensuring their premiums go up because they are self-
insured.”
• It was not made clear to Holly if the nurses assigned to her were case
managers, and they lacked experience with workplace injuries and knowledge
of the Comcare scheme. She was also sent back to work despite being
injured: “[The] nurses they diagnose people and then send them back to work.
So they diagnosed me with a soft tissue injury and sent me back to an 8-hour
shift. I worked 6 days. They didn’t want me to go the doctor and eventually I
got a doctor's appointment. I was in lot of pain, and I couldn’t go to work.
When I was being grilled by this nurse and the other company person, they
asked me why I had 4 days off work, and I said, ‘You're kidding aren’t you, I
was in so much pain that I couldn’t go to work’. I was really taken aback by the
whole thing.”
• After being paid her full wage for 45 weeks, due to step down provisions,
Holly’s wage was reduced by roughly $700 a fortnight despite her still not
being able to return to work: “I am not getting the help I need. I am still injured.
I went to my doctor, and he is very upset about this. They’ve wiped their hands
of this and he said I am going to be injured for the rest of my life.”
• She is currently surviving on annual leave but fears what happens when that
runs out: “I injured myself at work and I'm paying the ultimate price. As soon
as my annual leave is finished, they are going to sack me. And I was told that
by the people who had been there for a long long time.”
• On her experience of the Comcare scheme and the potentially for early return
to work to lead to longer term injuries: “All I can say is that it has been a
nightmare. Their processes leave a lot to be desired. I believe it is everyone’s
right to go on workers’ compensation. And them creating another scheme
what they are doing, that’s not right. I worry about the people who got injured
and are of course back to work early making their injuries worse. What
happens down the track?... It doesn’t seem right. One of the girls is in her 20s,
she has a lot of years of work ahead of her.”
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Gary’s3 story – speaks to early intervention as a scheme to ‘bury the bodies’, self- insurers denying liability, discrimination against older workers.
• Gary is a 47-year-old AMWU member and delegate. Mechanic for 25 years, in
workplace of self-insurer for 8 years. Incident occurred mid 2022, claim has
still not been accepted and going to the tribunal.
• In the early hours of the morning (night shift) Gary fell from a height of 1 metre
from a truck onto a concrete driveway, hitting his buttocks/back and then his
head and arms on the concrete. His glasses flew off at impact. He suffered
high levels of pain and tingling up and down his spine and arms immediately. A
colleague was with him, witnessed the event and asked what he needed. Gary
was disoriented and tried to move and eventually was able to stand after
some time. No ambulance was called and Gary finished his job (2 minutes),
filled out an incident report and drove home. He pulled over a few times due to
pain and difficulty concentrating but arrived home and was then unable to
sleep properly due to pain. Gary has had issues sleeping due to the injury ever
since.
• Upon returning to work the following week, Gary told his shift supervisor that
he was stiff and sore, and was advised to take it easy. Gary asked his manager
if they had received the incident report and was told yes. The next day the
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Name has been changed due to an ongoing dispute, and fear of reprisal from the members’ employer.
This speaks to the power differential between workers and employers under the Comcare scheme. The matter is not due to be seen before the AAT until June-October 2025. This speaks to the drawn out and ineffective nature of the scheme’s dispute resolution process.
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manager asked if he was ok, and after replying, the manager advised Gary that
he was getting older, and that the body takes longer to ‘bounce back’ at his
age. His manager mentioned he was still recovering from a push bike incident
a month earlier, comparing Gary’s injury to one sustained outside of the
workplace. A week after the incident, Gary asked to see a doctor due to
ongoing shooting pain in arms and legs, and after receiving initial pushback
from his manager, was taken by his manager to see a doctor the following day.
The doctor was dismissive of Gary’s pain and concerns, telling him it was just
bruised, but sent him for an X-ray.
• Gary asked his employer if the incident had been registered, and was told no,
he was under an early intervention plan. The company rehabilitation officer
sent him to physio in October, 3.5 months after the incident. Gary was put on
light duties in the office in November. In December Gary noted in his diary that
his manager once again mentioned his age, saying his injuries were due to
Gary’s age and his own negligence.
• In January 2023 Gary asked why his incident hadn’t been registered with
Comcare, and was told by management that they can extend early
intervention at their discretion. He was sent for more scans in January, which
confirmed there were other injuries. Upon receiving these reports, Gary was
given workers compensation forms to fill in, seven months after the injury was
first sustained. His claim was subsequently denied by Comcare.
• Gary has since had three spinal surgeries, which he has paid for himself out of
pocket. His surgeon says his injury is for life and that he will likely need
additional surgeries. He cannot pick up his children or sleep more than 3-6
hours without discomfort: ‘I can’t do normal things in life’.
• Gary says that early intervention is being used in his workplace to ‘hide the
bodies’ and as a way to keep claims numbers low in order to keep insurance
premiums low.
• The company withheld footage of the incident for over a year despite multiple
requests from Gary. Upon viewing the footage and seeing the way his body
bounced off the concrete as he fell, Gary’s wife cried. She noted that he was
lucky not to have blacked out while driving home.
• Gary was and still is highly regarded by his colleagues, attending weddings of
colleagues and having dinners together. Gary is committed to ensuring that
other workers do not have the same experience as he did and is still a
workplace delegate. His employer now asks workers to sign a form saying they
choose to be on early intervention rather than make a claim. However,
workers reportedly worry that management will be angry if they make a claim,
and they are strongly encouraged to deal with the injury ‘in house’ through
early intervention. Gary now acts as an informal support person for others
injured at his workplace, as he has been through the process and knows how
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the company and Comcare will ‘drag things out’.
• Gary’s incident, his attempts to receive his rights and entitlements, and his
efforts to educate other workers have led to some positive changes over the
past few years but there are still issues in his workplace. For example, the
health and safety representative (HSR) is part of the management team. The
HSR inspected the truck after Gary’s incident but did not check with Gary to
see how he was.
• Gary was recommended to a psychologist due to the ongoing mental stress
from his workplace injury and the compensation claim process. The
psychologist noted that Gary was the type of person to be stoic in the face of
pain (high pain threshold). Gary said the Comcare scheme needs to take into
account how people react differently to being injured.
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Wayne’s story – speaks to need for improved training of claims managers and change to the dispute resolution process: ‘no one is listening’.
• Wayne was injured at work in November 2019. He made a claim in April 2020
which was initially denied. After much effort and stress, Comcare accepted
some liability in October 2021, however this has now ceased, despite ongoing
pain from his injury.
• Occupation: Mechanical maintenance officer for Commonwealth entity.
• At work, Wayne attempted to grab a cable and as he pulled the cable he heard
a pop in his back and felt severe pain. Wayne collapsed on the floor and had to
ask colleagues to drive him home because he couldn’t stand or drive. After the
weekend he went to see his GP, who gave him pain medication and sent him
to a specialist. After a few days he was in so much pain he attended
emergency. He was unable to return to work for 3 months due to the pain in
his back. At the time he used up his long service leave and annual leave as
well as private medical insurance, as he knew that “dealing with Comcare
wasn’t worth it”. After returning to work he made a claim.
• Wayne explains the impact of having to follow up the claim and lengthy wait
times: “I made the claim, and then after I made the claim, I got a number and
then didn’t hear from anybody until I rang up 3 weeks later. They then
explained that they had 30-60 days to give you a determination”. After being
denied, the appeal took another 60 days to be denied. “Nothing ever seems to
happen in a timely manner. If they say between 7-20 days, you know it’s going
to be 20. They always drag it out. It could be that they’re unstaffed, then they
need to hire more people. By not having enough staff, they’re causing
claimants more mental stress.”
• To this day Wayne is in pain. Some days at a 2, other days it’s an 8. Sometimes
when doing tasks like the washing up, vacuuming, washing the car he will find
after a period of time that he has to stop - “my back is screaming at me”.
• Wayne’s experience at the AAT was of not being listened to and having to share
personal information unnecessarily. During the appeals process, Wayne was to
provide his entire medical history to Comcare. He gave them all the information
from the local medical centre he’d been going to. He had to take 2 days off work
to go through every single item in his medical file that was relevant to the case.
He sent that in, but the AAT appealed and asked for his full medical history,
taking further time and effort to produce.
• Wayne’s experience at the AAT speaks to the need for a separate division for
workers’ compensation: “At the AAT I would ask a question, and I would never
get an answer, the people I was speaking to were lawyers who would have to
take that on notice to Comcare, who would then get back to the lawyers, who
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would then bring the answers. The other party wasn’t represented there. I wasn’t
happy, you could never get anybody from Comcare.”
• Wayne had very mixed experiences of claims managers (CM). Three out of four
CM he had did not listen to him or ask how he was. He felt dehumanized by
the way they spoke to him. Only one case manager was very clear, consistent
in communication and showed genuine empathy. She was quickly promoted
and then was taken off his case.
Glen’s story – speaks to training of claims managers and lengthy processing review times: ‘it makes an already daunting experience even worse’.
• Glen explains his claim being rejected without a clear reason: “I put in my
claim, I did what I believed was the correct things to do. I submitted with the
evidence, paperwork and the claims officer, who had never even been on site
nor knew the work we did. The claims officer worked out of Melbourne. She
just blatantly refused the claim, even though I submitted medical reports,
doctors’ letters and scans, she said I didn’t have a hernia. So, I submitted
another claim with more evidence from doctors and medical staff saying I had
a hernia. The doctor didn’t know how I could have been rejected, he said very
clearly “Yes, hernia is from work”. She rejected the claim again.”
• This experience eroded Glen’s trust in the scheme: “The workplace even
invited her to the workshop at one point and I knew she would be in the area.
So, I tried to request a meeting, I asked her to sit down and discuss this with
me, clear up anything. And she flat out refused. Also, afterwards I had an issue
with my hearing. My workplace told me to file another claim, but I just did not
trust them anymore after what I had experienced. I told them no way. I went
back through Turner & Freeman. I didn’t trust the company to do it through the
workplace. It makes an already daunting experience even worse.”
• Stories like Glen’s also dissuade other workers’ from making a claim: “[My
colleagues] don’t want to go through the hassle after seeing how it was for me.
They saw that I had to get off work on stress leave, the guys are worried to
submit their claims. They don’t want to put up with the hassle.”
• On how the workers’ compensation claims process can be life changing:
“[The claims process] affected every part of my life. They refused to let me into
the workshop or at work. I had to pay for the surgery myself. It took 12 months
from when I first submitted the claim to get the claim approved. Turner &
Freeman took the company to court and then eventually it was approved.”
• 5. Do you have any ideas on how claims managers can do a better job?
“Perhaps, in my case if they had actually met with me or had seen the
conditions on which I worked. I think that would it made the decision a lot
easier and clearer. Instead of waiting until it was on the hands of solicitors.”
• “I ended up off work and on anti-depressants. Months course of anti-
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depressants you can’t go cold turkey because it takes longer to get off them.
That didn’t help anything. Having to take that on.”
• On only one CM reviewing his case: “I don’t think it should be in the hands of
one person. It is the opinion of one person, and they might not get it right. As in
my case they did not get it right. Wouldn’t even consider it. If it was in the
hands of more than one person, it might make it a lot better.”
• “The support that I got from the lawyers and the union was second to none. I
would not have made it through without it. I got support from work on site too
it was just the one claims officer that was the problem. I don’t want to see my
fellow workers go through something like this.”
Steven’s story – speaks to lengthy processing times and problems with self- insurers: ‘I have found out now that a lot of other workers have the same shared experience with the self-insurer. It was not an isolated incident.’
• On the pressure to return to work: “The woman with Comcare handling my
case who had only been working there for a few weeks was really good.
However, I did get the impression after a bit that she was under pressure to
make me take my own leave, return to work, or overall deal with it myself.”
• On the difficulty of managing a claim with a self-insurer: “It took months after I
had filed for the claim or had already undergone treatment that I was being
told that accounts hadn’t be settled. [Company] being a self-insurer, when
managing the claim, they advised me to tell all the practitioners that the
invoice should go to the claims manager in [self-insurer], via an email
address. I gave radiographers, imaging places, doctors, physios etc, I gave
them all the email to forward the accounts to. Then they came back to me
saying they weren’t hearing back from the claims managers, no word or
acknowledgment that [the self-insurer] had received it. I had to physically
approach people in [the self-insurer] to get the accounts settled.
• Q. What changes to the Comcare scheme would have helped you recover
better, feel more supported, and get back to work faster?
o “I don’t think anything they could have done would’ve gotten me to
work faster. That was just the nature of the body and my injury.
However, the effort I had to go through to get information and
payments from [the self-insurer] was the worst part of it.”
• Q. Do you have any ideas on how claims managers can do a better job?
o “Yes, I believe that once the decision is made to claim on workers
compensation that the process of getting some kind of reference
number or taking care of accounts should be done quicker. In my case
after battling for weeks I finally got a reference number from them and
in that time, I had already seen multiple practitioners.”
• Q. How could benefits or entitlements be set up to better help workers and
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their families? For example, should we change how long payments last or how
much you get?
o “I think maybe transparency on what the entitlements are. I couldn’t
have told you at the time what I was entitled to. I couldn’t tell you the
amounts or frequency.”
• On the stress of advocating for your rights and entitlements while injured:
“there was a couple of times where I had to go in and physically talk to people
at [the self-insurer] about settling the accounts so it wasn’t on me to settle, at
a time where I couldn’t even walk.”
• Steven says the issue is systemic: “The experiences I went through with [self-
insurer] was echoed by lots of other workers in [self-insurer]. I thought it was
only me and that it was a one off. However, I have found out now that a lot of
other workers have the same shared experience with [self-insurer]. It was not
an isolated incident.”
Fred’s story4 – speaks to workers being pressured to return to work too early, not knowing their rights, and how difficult it is to challenge the system: ‘Speaking out can put a target on your back.’
o We frequently heard of members becoming informal support for others
making a claim due to the difficulty and complexity of the process, as in Fred’s
case: “I injured my lower back many years ago. Had to get surgery. The
process meant that I eventually had to go to federal court over it. Now I help
delegates and non-members not have to go through the same horrible
experience I did. I learnt the SRC rules myself and help them know what their
rights are and what protections there are in place for them.”
o Fred also noted the pressure to return to work which isn’t offered with the
support required for injured workers’: “(Comcare) have an emphasis on
returning to work early, they rely heavily on that. They get workers to return to
work early and move on. In the way that when they get someone back as soon
as possible then they forget about it. No further assistance. People get back to
work early and Comcare wont or doesn’t define what the actual work is.
Especially if they can’t complete their hired role, they are then thrown into
some job that is not relevant to the worker and is not suitable at all. Leaving
them worse off. They need to make sure no one is worse off under the
Comcare scheme.”
o Fred notes workers are put under financial pressure and how this can
undermine rehabilitation: “Injuries can take a while, it can take a while to
settle back down health wise, life wise and work wise. The pressure that
people are put under financially doesn’t help that. They want to get back to
4
Name changed due to fear of reprisal.
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work early our of fear of getting cut off or losing out on pay. Which results in
people coming back to work when they aren’t ready or accepting roles pushed
by Comcare that are not suitable. On top of that as well, injuries definitely take
a toll on people’s careers. So many people I know, myself included, could
have been further in their career or somewhere else in their career and they
are not due to the cost of the injury.” o Fred speaks of the pressure not to speak about Comcare or workplace
injuries: “Also, the cost of speaking out about the system and speaking out for
yourself. Speaking out can put a target on your back.” Q. Who was targeting
you? “The agency itself and the workplace. It came down to money. My
workplace didn’t want to spend the money in a higher premium for further
protection of workers. I exposed this and they got in trouble because of this.
Comcare was also exposed for denying certain claims or implementing delay
tactics. I feel like I was a whistleblower and was targeted in that way
afterwards.” o Q. What changes would help families of workers who’ve had a major injury,
illness, or death feel more supported? “There is no empathy or
communication they treat workers as just a certificate or a ticket or a burden.”
“I think the claims managers do try, obviously more training and up to date
training would help a lot. But what I’ve seen is if you get a good claims
manager they are often plucked and placed somewhere else. The good ones
definitely move on quicker.” o On rights not being clearly communicated to injured workers: “Workers also
don’t know or understand that they are allowed to ask questions and appeal
decisions made, especially if they are dismissed. But the claims services
officers don’t advise those options, so workers have no idea.” o On workers of different backgrounds needing support: “All workers should be
treated equally and taken care of. The workers give our labour, if something
happens, we must be looked after the same way you would expect the next
person to be looked after.” “Every injured worker from every background
needs to be treated equally. If they have different language needs obviously it
should be standard that they are assisted in that regard.” o Q. How could benefits or entitlements be set up to better help workers and
their families? For example, should we change how long payments last or how
much you get?
o “Absolutely. The time frame is longer than the state system, but it has
that pressure of “Oh shit I have to get back before a certain time frame
otherwise my pay gets cut off, I have to make sure I can feed my
family.” Also, your career progression gets stunted, or you get denied
work. I have someone I’m helping at the moment who has a long-term
injury that has been denied a role because of the injury. The injured
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workers are left behind.”
o Q. What are your thoughts on the idea that Comcare should provide payments
covering lost wages and medical expenses while claims are being processed?
o “They should so no one is out of pocket to start with. They do anyway
because they backpay to a certain amount but there’s that gap where
people are out of pocket when they shouldn’t be out of pocket. That
feds into the delay tactics.”
Each of these member stories demonstrates the life changing impact that workers’ compensation can have for injured workers, and how this impact when negative can exacerbate a workplace injury, cause additional psychological injury and undue harm.
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Best practice in workers’ compensation
Q1. What are the primary objectives of a workers’ compensation scheme? Should those objectives be expressly stated in the Act?
A central tenet of workers' compensation is to provide support to injured workers to fully recover or return to their fullest potential level of health, rehabilitate and return to meaningful work. For this reason, the AMWU supports the inclusion of objects in the Act which are worker-centric. Furthermore, the Act should clearly define the term ‘worker’, moving away from the current term employee in a way that accurately reflects existing and emerging work arrangements. Further discussion of this and a suggested definition of worker are provided on page 29-31.
The following objectives should be explicitly stated in the SRC Act:
• Reduce workplace incidents and diseases.
• Improve workplace health and safety and reduce the social and economic
costs of workplace injury to workers, their families and the community.
• Provide effective and durable rehabilitation for injured workers and
facilitate their timely return to work.
• Increase suitable employment opportunities for injured workers to enable
their timely return to work.
• Ensure appropriate and timely compensation for injured workers.
• Discourage abuse of the system with appropriate disincentives for non-
compliance.
• Enhance system flexibility to adapt to various work arrangements.
• Maintain a fully funded scheme through appropriate premium settings
and/or employer scheme contributions.
Q2. What are best practice design principles for a workers’ compensation scheme?
AMWU members have developed 12 guiding principles for workers compensation in
line with scholarly research on best practice in workers’ compensation, and the
experience of members in a variety of workplaces and work arrangements. The
principles are adapted here to reflect the particularities of the Comcare scheme and
are as follows:
1. Workers' compensation shall be available on a no-fault basis where an injury “arises
out of or in the course of employment”, including the aggravation or exacerbation of an
existing injury.
2. Premiums paid by employers must recover the costs of the compensation scheme
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and encourage safe work practices.
3. The Regulator must be adequately resourced to carry out its functions, including an emphasis on injury prevention and compliance.
4. Meaningful tripartite consultation must be a central part of the scheme.
5. The system of designated claims management and self-insurers shall be abolished, and all workers' compensation functions should be internalised within a statutory government insurer (ComCare).
6. Trade unions must have the power to enforce non-compliance with workers' compensation law together with rights of entry, inspection and other investigative powers.
7. The legislation and the Administrative Appeals Tribunal (AAT) shall provide a quick, easy, effective and legally binding mechanism to resolve disputes with regard to all aspects of the workers' compensation scheme. The scheme shall be liable for all associated legal costs.
8. Return to work shall be elevated as a central tenet of workers compensation by:
8.1. placing an absolute obligation on employers to provide suitable duties,
8.2. preventing termination unless an agreed injury management plan specifies that the return-to-work goal is a different job with a different employer, and
8.3. incentivising the employment of injured workers.
9. Journey claims and recess claims shall be covered by the scheme.
10. Weekly payments shall be set at a level equivalent to an injured worker’s pre-injury average weekly earnings irrespective of their fitness for work and shall not be subject to any caps or step-downs.
11. Costs associated with medical and related treatment shall be covered for workers compensation purposes with no arbitrary caps or limits.
12. Consideration of a worker’s functionality shall be addressed as part of the injured workers rehabilitation plan.
Q3. Describe the areas of the scheme needing reform to help workers understand and access their entitlements. What changes are needed to enable workers better to navigate the legislative framework?
Early intervention
As discussed on detail on pages 35-36, the early intervention schemes as it currently
16
functioning and championed by the regulator (despite it not forming part of the current legislation), creates a barrier to injured workers’ making a claim and therefore reduces access to workers’ entitlements. As we show in our member experience section, some employers have used early intervention to complicate and confuse the process of making a claim and this is a key area for reform. We agree with the ACTU that there should be penalties for employers who seek to coerce, dissuade or mislead workers from making a claim for or accessing workers’ compensation in any way.
QLD recently introduced such penalties for claim avoidance and penalties for avoiding notice for new employees, as well as providing timely information about a claim.5 We also propose a redefinition of early intervention to mitigate the risks of the scheme being used to discourage workers from submitting a claim.
Name of the SRC Act
We submit that the title of the Act be changed to more accurately reflect the nature of the legislation and reduce unnecessary confusion. The name should be a straightforward description of the scheme, such as the Commonwealth Workers’
Compensation Act or similar.
Workforce Challenges
Q4. What changes are required to address workforce challenges (current and emerging: see ‘Issues to be considered’ above) to maintain an effective and sustainable Comcare scheme?
The scheme should be fully funded and properly resourced to ensure that new and emerging workplaces practices can be monitored, accounted for and incorporated into the scheme in ways that prevent injuries and improve outcomes for injured workers.
We also note that the definition of worker is a matter that needs to be addressed as part of the review, see pages 29-31 for in-depth discussion.
Q5. What changes are required to the Comcare scheme to better accommodate remote work and working outside ‘traditional’ work hours?
Injuries sustained where there is a connection with work should be covered by
Comcare. For example, working from home and work-related travel. We also recommend that the ability for an injured employee to commence a claim following an injury needs to be simplified to a simple notification to the employer as soon as
5
See Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2024, QLD.
17
possible following the injury, significantly reducing complexity and making it easier for workers regardless of isolation from fixed workplace to benefit from the scheme.
Normal Weekly Earnings should be re-assessed to consider the broader range of employees now covered by the scheme and changes to work arrangements. When calculating the Normal Weekly Earnings (NWE) the basic rule outlined in section 9 of the SRC Act defines the relevant period to be the two weeks prior to the injury. There is an alternative period that can be applied under section 8(5).
Regarding changes to work arrangements, such as work occurring outside ‘traditional’ work hours and the entry of licensees into the scheme where rotating rosters are standard, it would be appropriate to consider adopting a longer relevant period as the basic rule/default. For example, in the Victorian and NSW schemes the relevant period is 52 weeks prior to injury with mechanisms to account for those employees with a shorter employment tenure.
Q6. What changes are required to the Comcare scheme to better manage complex psychological claims?
Accessing early treatment and RTW support
We recommend:
• Provisional approval of all claims, including psychological claims, to enable
injured workers to be able to access timely treatment without financial
imposition or loss of income.
• Obligations on the employer to plan for RTW and a requirement to consult with
injured workers, their representatives and treating practitioners in the process.
Adoption of recommendations from relevant inquiries
We note that Safe Work Australia has published a best practice framework for responding to psychological claims called ‘Taking Action’.6
“Taking Action is based on three pillars:
1. the philosophy of ‘centering the person on claim’ (PoC)
2. acknowledgement that there are three levels of intervention, and hence improvement, in any system: the macro, the meso and the micro, and
6
Safe Work Australia (2018) Taking Action: A best practice framework for the management of psychological claims in the Australian workers’ compensation sector. Retrieved from: https://www.safeworkaustralia.gov.au/system/files/documents/1902/taking-action-framework-2018.pdf
18
3. the principle of Continuous Improvement.”7
We encourage the panel to adopt the Taking Action framework as detailed in the Safe
Work Australia (2018) report.
In July 2020, the Victorian Government commissioned an independent review into the administration and management of complex workers’ compensation claims.8 We believe a number of the recommendations contained in this report are relevant when considering best practice management of complex psychological injuries.
In their Inquiry Report on Mental Health, 9 the Productivity commission made the following recommendation which we recommend be adopted in the legislation:
• Workers’ compensation schemes should be amended to provide and fund clinical
treatment and rehabilitation for all mental health related workers compensation
claims for up to a period of 6 months, irrespective of liability. (Action 7.4)10
Q7. What changes are required to the Comcare scheme to respond to climate change risks?
We submit that the specific risks posed by climate change to workers are currently underappreciated in Australia, as workers are already being exposed to climate- induced workplace injuries. The ILO has stressed the increasing risks posed to workers by climate change ‘needs to top our list of global priorities’ for WHS, yet in a review of existing initiatives in Australia, Humphrys (2024: 12) finds that “the
Commonwealth has engaged in only very limited consideration of the WHS impacts of climate change”.11
A recent review by Schulte et.al. (2023) identified 10 major OHS risks from climate change:
“(1) increased ambient temperature; (2) air pollution; (3) ultraviolet exposure;
(4) extreme weather; (5) vector-borne diseases and expanded habitats; (6)
industrial transitions and emerging industries; (7) changes in the built
environment; (8) mental health effects; (9) economic burden; and (10)
7
Safe Work Australia (2018) Taking Action: A best practice framework for the management of psychological claims in the Australian workers’ compensation sector. Retrieved from: https://www.safeworkaustralia.gov.au/system/files/documents/1902/taking-action-framework-2018.pdf pp. 11
8
Improving the experience of injured workers: A review of WorkSafe Victoria’s management of complex workers’ compensation claims, Peter Rozen QC, accessible Improving the experience of injured workers
FINAL REPORT_0.pdf (www.vic.gov.au)
9
Productivity Commission 2020, Mental Health, Report no. 95, Canberra
10
Productivity Commission 2020, Mental Health, Report no. 95, Canberra, pp. 66.
11
Humphrys, E. (2024). Inertia in transformed times: Work health and safety amid climate change.
Journal of Industrial Relations, 00221856241295497. https://doi.org/10.1177/00221856241295497
19
geoengineering.”12
In Australia, workers are on the frontlines of the climate crisis, especially regarding high heat13. Outdoor workers are particularly exposed to high heat, however those working indoors in non-climate controlled places with poor cooling and ventilation such as warehouses are also at high risk of heat related illness and injury 14. For manufacturing workers, the risks of working in high heat are compounded by heat generating machinery, heavy protective clothing and strenuous physical activity.
Ensuring adequate rest breaks, availability of cool water, monitoring of temperatures as well as for signs of heat stress in workers can be viewed as impediments to productivity. However, the ILO argues that “implementing WHS measures to prevent injuries and death due to excessive heat could not only protect lives and livelihoods, but could save over US$361 billion globally”, demonstrating that it is far costlier to avoid adapting workplaces to climate change.15 In addition to high heat, air pollution, including smoke from bushfires, is also presenting an increasing risk to worker health and safety in Australia16.
Climate change is resulting in the increased incidence and severity of extreme weather events which affect workers both at work and during travel to and from work.
The AMWU has argued that employers must have adequate controls in place to protect workers from inclement weather including:
• Conduct risk assessments of all tasks/jobs which may be impacted by
inclement weather (like jobs outdoors or in non-airconditioned work
environments).
• Implement controls which will protect workers from risks which may arise
from inclement weather.
• Provide adequate facilities to protect workers from any risk of harm arising
from inclement weather.
• Provide information, instruction, training, and supervision about what things
have been put in place to protect workers from inclement weather, and where
relevant, what triggers are to be relied upon if inclement weather controls are
12
Schulte, P. A. et.al. (2023). Updated assessment of occupational safety and health hazards of climate change. Journal of Occupational and Environmental Hygiene, 20(5–6), 183–206.
https://doi.org/10.1080/15459624.2023.2205468
13
Humphrys, E., Goodman, J., & Newman, F. (2022). ‘Zonked the hell out’: Climate change and heat stress at work. The Economic and Labour Relations Review, 33(2), 256–271.
14
Newman, F., & Humphrys, E. (2020). Construction Workers in a Climate Precarious World. Critical
Sociology, 46(4–5), 557–572. https://doi.org/10.1177/0896920519880951
15
Humphrys, E. (2024). Inertia in transformed times: Work health and safety amid climate change.
Journal of Industrial Relations, 00221856241295497. https://doi.org/10.1177/00221856241295497 pp. 2
16
Humphrys, E., Newman, F., & Heenan, N. (2019, December 19). Smoke is affecting workers, even in air- conditioned offices. So what can we do? ABC News. https://www.abc.net.au/news/2019-12-19/unions- need-to-be-part-of-solution-climate-change-sydney-smoke/11802438
20
not permanently in place.
• Maintain and review the controls relied upon to protect workers from risks
which may arise from inclement weather.
Many of the challenges associated with climate change for workers will be unprecedented. Two recent ILO reports contain specific recommendations for incorporating the risks of climate change into WHS frameworks and legislation: Ensuring Safety and Health at Work in a Changing Climate (ILO, 2024) and
Heat at Work: Implications for Safety and Health. A Global Review of the Science,
Policy and Practice (ILO, 2024). For an in-depth review of how Australia stacks up in relation to the recommendations made in these reports, see Humphrys (2024).
In relation to Comcare, the above discussion suggests that there should be presumptive workers compensation in relation to injuries and illnesses that arise at work. Based on the above risks, there is also an expectation that an increasing number of workers will be at risk of injury and illness due to climate change and that claims for compensation will likely increase as a result. Evidence from the U.S demonstrates that extreme temperatures (both high and low) are correlated with high workers’ compensation claim rates.17 The risks of climate change-induced extreme weather is another reason the scheme needs to be fully funded to ensure it meets the objects proposed, to reduce workplace accidents and injuries and to ensure appropriate and timely compensation for injured workers.
Scheme coverage
Q18. What are the risks and issues that arise from current coverage of the Comcare scheme?
Quinlan (2016) notes a loss of workers’ compensation coverage for workers in
Australia over time, due to the increasing prevalence of non-traditional and precarious working arrangements, including sub-contracting.18 There is evidence that workers on certain contracts and work arrangements are less likely to make a claim
(Quinlan, 2016). Changing the definition of a worker is one way to combat this, as we have suggested in this submission. Ensuring that all workers have appropriate access to information regarding their rights and entitlements to workers’ compensation, regardless of their work arrangement, is also essential.
17
Dillender, M. (2019). Climate Change and Occupational Health: Can We Adapt? W.E. Upjohn Institute.
https://doi.org/10.17848/pb2019-5
18
Quinlan, M. (2004). Workers’ compensation and the challenges posed by changing patterns of work:
Evidence from Australia. Policy and Practice in Health and Safety, 2(1), 25–52.
https://doi.org/10.1080/14774003.2004.11667642
21
Q19. Is it still appropriating for the Comcare scheme to be the pathway to a national scheme for private multi-state employers? Apart from Australian Government entities and companies who should have access to the Comcare scheme? Give reasons.
No, it is our unions’ view that the Comcare scheme should be restricted and should be predominantly for Commonwealth government entities. We provide recommendations around the criteria which should apply for corporations to join the Comcare scheme further below.
If the Comcare scheme becomes a national scheme for private multi-state employers, the AMWU have several concerns:
• Regulatory burden on Comcare. The Comcare scheme would need to manage a
significantly larger and more diverse pool of employers and industries. This could
strain the regulator’s resources and capacity to effectively oversee and enforce
compliance across all sectors. Evidence of this has already emerged with its
responsiveness and the vacuum of support for workers and their elected HSRs. This
issue was highlighted recently when a current self-insured employer, without
notice, decided to diversify into the mining sector where the Comcare WHS
inspectorate has no capacity.
• Impact on state and territory jurisdictions. Diverting multi-state (large) employers
from state and territory workers’ compensation schemes to the Comcare scheme
could have significant repercussions for workers left in these jurisdictions. One
major concern is the reduction in premium revenue, which is essential for funding
their regulatory functions. With fewer employers as premium payers under state and
territory schemes, these regulators would face financial constraints, potentially
impacting their ability to effectively enforce compliance and putting further
downward pressure on workers benefits.
• Administrative complexity. Managing claims, benefits, and compliance for a more
extensive and diverse group of licensees could increase administrative complexity.
This might lead to delays in processing claims and providing timely support to
injured workers.
Q20. What criteria should apply for corporations to join the Comcare scheme?
It is our position that this scheme should predominantly serve Commonwealth government entities. If the ACT Government is covered under the SRC Act it should be as a premium payer.
We recommend the following criteria:
1. The scheme should be for the Australian Public Service and would not include
coverage of the private sector, except for former Commonwealth authority.
Failing this, then we recommend the following criteria for private multi-state employers:
22
2. The scheme should be for the Australian Public Service. For private multi-state
employers, the following tests should apply:
a. Have operations in all states and territories, and
b. Exclusively or predominantly competing with the Commonwealth, and
c. Subject to agreement with relevant unions and have majority of workers
agreement
Additionally, private multi-state employers would be premium payers, with no opportunity to self-insure.
WHS Act coverage
21. What are the implications for non-Commonwealth licensees in maintaining or ending the transitional period for their coverage under the WHS Act?
We believe that ending the transitional period for non-Commonwealth licensees' coverage under the WHS Act would not pose significant issues. Given the harmonisation of WHS laws across Australia, there should be minimal negative impacts on non-Commonwealth licensees transitioning to state and territory WHS jurisdictions.
Except for Victoria, all states and territories have adopted the Model WHS laws, ensuring a consistent regulatory framework. Victoria's Occupational Health and Safety framework, while not identical, is like the Model WHS framework, providing comparable protections and obligations and was the basis for the model WHS legislation.
Therefore, non-Commonwealth licensees should be able to transition smoothly to state and territory WHS jurisdictions without facing substantial regulatory or operational challenges.
22. Should self-insured licensees be regulated by Comcare under Commonwealth WHS laws, or state and territory WHS laws and regulators? Please give reasons.
It is our position that self-insured licensees should be regulated under the relevant state and territory WHS jurisdictions.
The diverse range of work undertaken by licensees under the Comcare scheme presents challenges for the regulator. This diversity spans various industries, each with its own unique hazards and safety requirements, including healthcare, construction, mining, and transport. As a result, the regulator must stay informed and adept at managing industry-specific risks, which can be complex and resource-intensive.
Ensuring comprehensive oversight and effective regulation across such varied sectors is a critical issue that needs to be addressed to maintain high safety standards and protect workers.
23
For example, challenges arise when private employers, expand, diversify or shift their business operations into different industries, like moving from construction to aviation or transport to mining. Such transitions require the regulator to adapt and address new safety concerns, further complicating the regulatory landscape.
It is our view that non-Commonwealth licensees should be regulated under the relevant state and territory WHS jurisdictions. This may ensure that state and territory regulators, who are more familiar with local industry-specific hazards and practices, oversee these licensees can mitigate this risk and provide effective and responsive regulation.
Governance arrangements
Q23. Does the SRC Act suitably define the roles and responsibilities of:
• Comcare?
• SRCC?
A key deficiency of the SRCC is that it has weak enforcement powers, for example it cannot suspend a license. The SRCC is a regulator which cannot impose penalties or direct actions or behaviours with legal authority, the only tool is to cancel or not renew a licence, which it has demonstrated a reluctance to do. It is lacking in having a directly accountable Inspectorate, rather relying upon Comcare as its secretariate.
The Work Health and Safety Act 2011 (WHS Act) confers a range of operational functions on Comcare including enforcement and compliance, the collection of data and the promotion of WHS education and training. Additionally, Comcare are also required to foster a co-operative, consultative relationship between work health and safety duty holders and social partners. Day-to-day regulatory functions are the responsibility of Comcare. However, the SRCC has an important role in overseeing the activities of Comcare. Consistent with the composition of the SRCC, and
Australia’s obligations pursuant to ILO Convention 155, the AMWU suggests effective scrutiny of Comcare’s activities can only occur where all stakeholder views are considered. At best, functions conferred upon the SRCC by the WHS Act, provide for third part party oversight via the Minister in an advisory capacity only. We note that the SRCC has never sought to exercise these functions, and our union has been advised WHS functions have never been an agenda item of the SRCC. The AMWU is of the view that this arrangement presents a major obstacle to effective scrutiny of the activities ‘day-to-day’ activities. The AMWU recommends the establishment of tripartite consultative body to directly oversee the SRCC & Comcare’s workers’ compensation & WHS regulatory functions.
24
Q24. What governance framework is needed to provide high-level oversight of
Comcare? For example, a governing or advisory board? What requirements should apply to any members of such a group, for example relevant expertise or representation or both?
The Comcare scheme requires a stronger tripartite model. We call for the establishment of a tri-partite Ministerial Advisory Council, whose principal function would be to provide advice to and carry out any request of the responsible Minister.
Further functions should include the monitoring and review of the performance and effectiveness of the Commonwealth Safety Rehabilitation and Compensation & WHS legislation, their regulator/s, and the SRCC against their respective functions and the legislation’s objects. The Council should also develop guidance or jurisdictionally specific Codes of Practice as required.
Q25. What changes are required to ensure the SRCC has the powers and responsibilities to effectively regulate self-insurance licensees and the public sector?
See response to 23.
Q26. Does the existing framework provide appropriate oversight and monitoring, compliance and reporting arrangements for:
• Comcare?
• Self-insured licensees?
• Delegated claims management arrangements (see 3.7)?
• Rehabilitation authorities?
• Workplace rehabilitation and other service providers?
The existing framework, if there is one, is not appropriate. The AMWU draws the reviews attention to the ILO Convention 187, which will enter into force for Australia on 29 Oct 2025. We submit that with the current absence of a tripartite framework providing appropriate oversight and monitoring, compliance and reporting arrangements, the Commonwealth will enter contravention of this convention from commencement of its operation.
We recommend the removal of delegated claims management. Delegated claims management has resulted in financially unsustainable practices in VIC and NSW undermining the integrity of their schemes. As discussed in further detail on pages
42-43, the Victorian Government independent review into the administration and management of complex workers’ compensation claims there is a recommendation
25
to remove claims agents from all complex claims largely based on the significant conflicting interests which adversely impact injured workers. There is also evidence from a review of the South Australia scheme that outsourcing claims management does not meet financial objectives and creates unnecessary complexity in scheme management to the detriment of injured workers. 19 In light of these findings and supported by research including Purse (2009) who concludes for a return to in- sourced claims management, the AMWU believes the experiment with delegated claims management needs to end.
Employers currently have undue control of rehabilitation. This needs to change to reflect a worker-centric scheme. Rehabilitation providers as allied health professionals need to be appointed by workers in the same way that other treating health professionals are. Workers must be able to choose their medical and rehabilitation providers in line with a worker-centric approach to the scheme.
Treating health professionals should be left with no illusion of who they are working for and whose interest should be at the forefront of treatment.
As noted by our members, rehabilitation providers prioritising repeat business and profit can act in ways that undermine the welfare of injured workers:
“They [rehabilitation providers] are an industry formed from a need. They are there to make some money from it. They do not have the welfare of the injured party as their top priority. There were so many things they got wrong and that I had to correct.” 20
Q27. Are the Hawke and Hanks Review recommendations still relevant for rehabilitation governance including introducing an auditing program for rehabilitation authorities; creating a return-to-work inspectorate; penalties for failures to meet rehabilitation responsibilities under the scheme; and the ability to approve or accredit all providers operating in the scheme?
We do not support the idea of a rehabilitation authority due to the current unfettered control it provides to scheme employers over vulnerable injured workers, we do support the creation of a return-to-work inspectorate. We support penalties for failures to meet rehabilitation responsibilities under the scheme. We support the ability to approve or accredit to establish a best practice standard of rehabilitation provision.
Q28. What changes are required to the Comcare scheme to ensure future scheme
19
Purse, K. (2009) Outsourcing Myths and Workers’ Compensation Claims Administration. Australian
Journal of Public Administration, 68(4): 446-458.
20
Interview with AMWU member.
26
financial sustainability?
Due to the failure of a commonwealth tripartite governance body, the AMWU is blind to the financial strategies of the Comcare scheme. We would note that our experience from other schemes is to take a conservative approach to scheme sustainability including taking at least a 75% risk margin to budgets rather than a central estimate approach and avoid reliance on markets. The key is making sure the premiums cover the costs and to avoid engaging in a race to the bottom via federal competition. The Comcare scheme is financially viable at present. As evidence see the most recent annual Comcare report: “Comcare’s premium scheme remains financially viable and capable of funding outstanding premium-related claims liabilities”.21
Q29. Is the scheme’s approach to prudential management adequate for Comcare’s compensation liabilities? If not, what alternatives do you suggest?
See response to Q28.
Q30. Should Comcare be able to access, invest and use money from premiums to fund proactive activities?
The AMWU supports the use of premium funding for proactive activities as a necessary investment in injury avoidance.
Q31. Are changes required to the licence fee setting provisions under the SRC Act to allow for effective and efficient cost recovery?
Yes, see discussion above.
Q32. Are the requirements under the SRC Act for membership of the SRCC appropriate?
The AMWU supports the current approach and notes that systemic issues with the
SRCC broadly arise from the limitations set on its functions and absence of enforcement tools.
21
Comcare Annual report 2023-24. Retrieved from: https://www.comcare.gov.au/about/forms- pubs/docs/pubs/corporate-publications/comcare-srcc-annual-report-2023-24.pdf pp. 97.
27
Q33. Are the arrangements for tripartite involvement under the WHS Act and SRC Act adequate? If not, what additional arrangements are required under the SRC Act?
No, they are not adequate, as there is not meaningful tripartite involvement in the scheme at present (against ILO fundamental convention 187). Tripartite arrangements need to be established. We support the ACTU’s suggestion of the following additional arrangements:
• Statutory Tripartite Consultative Body. Consistent with the obligations under the
model Work Health and Safety laws, all jurisdictions must establish a statutory
tripartite consultative body developed and agreed upon with unions and employers.
• Funding and autonomy. The statutory tripartite consultative body must be fully
funded to enable it to conduct research, inquiries, and programs relevant to the
scheme's objectives at its own discretion.
• Monitoring and reporting. The body should have the objective of monitoring any
statutory authority established under the scheme. It should also report to the
relevant Minister, providing an annual report on its initiatives and achievements, in
addition to any specific requests from the Minister.
• Ministerial direction. The relevant Minister should have the authority to direct the
statutory tripartite consultative body to carry out work relevant to its constitution
and the scheme's objectives.
• Secretariat support. The commonwealth government should provide a secretariat to
the statutory tripartite consultative body and be accountable to any of its requests.
Q34. Do you have suggestions for improvements to facilitate tripartism within the
Comcare scheme? If so, what are they?
See previous responses.
Scheme Entitlements
Q35. Does the definition of ‘employee’ in the SRC Act reflect contemporary working arrangements? Are the deeming provisions adequate?
The current definition does not reflect contemporary working arrangements and rather reflects a bygone era when all those covered were direct employees of the
Commonwealth. A significant risk is the narrowness of the coverage of the scheme as it only covers “employees”. The term ‘worker’ better reflects modern work arrangements as is found in most other Australian schemes, including the increasing prevalence of non-traditional employment relationships which are currently not well captured by the
28
Comcare scheme. In a report commissioned by the Office of the Australian Safety and
Compensation Council, Creyke and Ghaeni (n.d) outline principles to guide a nationally consistent definition of a worker for the purposes of workers’ compensation.22 Creyke and Ghaeni note that independent contractors, among others, may currently be left out of workers’ compensation schemes and that “an efficient workers’ compensation system should minimise any transfer of liability from the employment arena to taxpayer funded schemes.”23
Relevant principles which the AMWU endorses include:
• “Effective workers’ compensation systems should ensure that workers,
especially those who are vulnerable, will be protected, and that employers will
meet their obligations to provide compensation and options for rehabilitation”.
• A key factor in deciding whether someone is employed under a contract of
service is whether an employer has control of what the employee does and how
the worker performs employment tasks”.
• “As a minimum, deeming provisions should cover casual workers, persons lent
or let on hire, labour hire workers and volunteers. These are generally
occupations in which employers are better placed than workers to bear the cost
of workers’ compensation premiums and to be able to understand and comply
with their obligations.”24
Taking into account the above principles and seeking to ensure that the definition of a worker is as inclusive as possible to the benefit of injured workers, we propose the Act defines a worker based on the analysis provided by Prof. Andrew Stewart in his submission on Independent Contracting and Labour Hire.25 This definition of employment can be used to define a worker.
The following standard definition of a worker is proposed:
1. A person (the worker) who contracts to supply their labour to another is to be
presumed to do so as an employee, unless it can be shown that the other party
is a client or customer of a business genuinely carried on by the worker.
2. A contract is not to be regarded as one other than for the supply of labour merely
because:
22
Creyke, R. and Ghaeni, J (n.d.) Australian Workers’ Compensation Law and its Applications –
Definitions of Employees and Workers.
23
Creyke, R. and Ghaeni, J (n.d.) Australian Workers’ Compensation Law and its Applications –
Definitions of Employees and Workers. Report for Office of the Australian Safety and Compensation
Council. pp. 6.
24
Creyke, R. and Ghaeni, J (n.d.) Australian Workers’ Compensation Law and its Applications –
Definitions of Employees and Workers. pp. 9.
25
Stewart, A. (n.d.). Submission on Independent Contracting and Labour Hire (p. 10-11). School of Law,
Flinders University. Retrieved from https://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?u rl=ewrwp/independentcontracting/subs/sub69.pdf
29
a. the contract permits the work in question to be delegated or sub-
contracted to others; or
b. the contract is also for the supply of the use of an asset or for the
production of goods for sale; or
c. the labour is to be used to achieve a particular result .
3. In determining whether a worker is genuinely carrying on a business, regard
should be had to the following factors:
a. the extent of the control exercised over the worker by the other party;
b. the extent to which the worker is integrated into, or represented to the
public as part of, the other party’s business or organisation;
c. the degree to which the worker is or is not economically dependent on the
other party;
d. whether the worker actually engages others to assist in providing the
relevant labour;
e. whether the worker has business premises (in the sense used in the
personal services income legislation); and
f. whether the worker has performed work for two or more unrelated clients
in the past year, as a result of the worker advertising their services to the
public.
4. Courts are to have regard for this purpose to:
a. the practical reality of each relationship, and not merely the formally
agreed terms; and
b. the objects of the statutory provisions in respect to which it is necessary
to determine the issue of employment status.
5. An employment agency which contracts to supply the labour of a person (the
worker) to another party (the client) is to be deemed to be that person’s
employer, except where this results in a direct contract between the worker and
the client.
6. Where:
a. an arrangement is made to supply the labour of a person (the worker) to
another party (the ultimate employer) through a contract or chain of
contracts involving another entity (the intermediary), and
b. it cannot be shown that the intermediary is genuinely carrying on a
business in relation to that labour that is independent of the ultimate
employer, on the basis of factors similar to those set out in (3) above, the
worker is to be deemed to be the employee of the ultimate employer.
Q36. What is best practice for determining injuries and diseases? For example, is it still appropriate to separate these conditions? Is there a different approach needed for certain injuries, for example psychological?
30
The determination of injuries and illness must be arrived at objectively via a medical report diagnosing an injury or illness and attesting that an injury ‘arises out of or in the course of employment’, including the aggravation or exacerbation of an existing injury.
We do not believe the Act should separate these conditions and note where this has been incorporated into schemes, it was driven by a desire to manage cost contrary to a principal of fair compensation.
The current timeframes for decisions are longer than in other jurisdictions and detrimental to injured workers. This must be taken into account when considering the process for determining injuries and diseases.
Should the review adopt our recommendation for provisional liability, we see little need for a different approach for psychological injuries. We recommend that best practice for all injuries regardless of nature is for Case Managers to triage, ensuring that proper diagnosis, treatment and support is available.
Q37. Is there sufficient clarity as to when an employee sustains an injury ‘in the course of their employment’ if they are away from their usual place of employment or injured during an interval within their usual period of employment?
The AMWU is aware of some of the case law with respect to away from their usual place of employment or injured during an interval within their usual period of employment and would agree there is sufficient clarity regarding this.
Q38. Is the current threshold for liability for diseases (significant contribution) appropriate?
The threshold for liability for diseases should be established as a ‘substantial contribution’ rather than significant contribution allowing for the fact that there can be other contributing factors, but the disease may not have presented had it not been for work.
Q39. Are the current exclusions under the SRC Act appropriate?
We oppose to exclusions on commuting and recommend the adoption of workers being able to make journey claims.
We support the ACTU’s suggestion that current exclusion regarding ‘reasonable administrative action’ often leads to disputes and the initial rejection of claims, causing undue stress for workers. To mitigate these issues, this exclusion must be more clearly defined within the legislation. Reasonable administrative action needs to be further
31
qualified by two elements, not only that the action was reasonable based on the circumstances, but that the action was exercised in a reasonable way. Further, that at any point that both elements are not present the exclusion falls away.
Q40. How can entitlements be structured to improve outcomes for employees and their families? What changes can balance fair support while ensuring the financial viability of the Comcare scheme? For example, should changes be made to the step-down provisions or the duration of payments?
Weekly benefits must have direct relationship with pre-injury earnings.
Workers should have control over the engagement of all medical and allied health treatment and services. Rehabilitation providers as allied health professionals are currently chosen by employers. Rehabilitation providers must be working for the injured worker as their client.
We reiterate our position that the scheme is already financially viable.
We recommend the removal of step-down provisions. We note that step downs as a mechanism of persuading (starving) workers to return to work following an injury was never based on research and evidence, but rather as a cruel mechanism of cost minimisation for the scheme. We are also aware that despite step downs being readily incorporated into competitive federalisms race to the bottom of workers compensation, evidence suggest it has no impact on return-to-work rates, unsurprisingly the injured workers' health is the leading influence on return to work
(Lane et.al., 2020). Workers' compensation must be compensation for loss, not partial compensation. The AMWU supports the existing duration of payments as part of a long tail scheme.
Q41. What changes are needed to best determine fair compensation for medical treatment and rehabilitation and household and attendant care services?
Fair compensation for medical treatment and rehabilitation and household and attendant care services covers all medical and related treatment and hospital/ambulance costs reasonably necessary because of the injury. This compensation must remain uncapped and remain in place until the disablement or suffering from the injury is resolved.
Q42. How should the permanent impairment provisions be improved?
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The current Comcare guide to permanent impairment whilst recently reviewed remains dated. Consistent with our advice to this Comcare review, the use of the SafeWork
Australia guide with AMA PI guide number 5 (National Guidelines for the Evaluation of
Permanent Impairment), is not suitable as a result of the AMA guides being behind paywalls, excluding access for workers and their representatives. In the absence of those who would be subject to the laws being able to access the laws, to which the
AMA guidelines would be if adopted, this would create an inbuilt injustice.
The AMWU calls for the abolition of the illegitimate use of ‘whole of person assessments’, which act to reduce compensation and limit access to statutory lump- sum payments and common law remedies via legislated minimum thresholds.
In light of the abolition of the statutory defined benefit superannuation scheme to which public servants at the time of the creation of the SRC Act enjoyed and the emergence of the majority of workers covered by the scheme no longer being employees of the
Commonwealth, the AMWU recommends the establishment of a statutory lump sum scheme as part of the management of permanent impairment provisions offered under the Act. These statutory payments should account for both disablement and loss of prospects and pain and suffering.
The AMWU believes there needs to be an improved assessment of permanent impairment that reflects the impact of the injury/disease on the workers’ biopsychosocial environment, not just in the workplace but outside including social and family environments. Whole of person impairment does not take these other environments into consideration. Measures to address this problem have been attempted before, and we refer the panel to analysis of the use of a ‘disability severity scale’ in Victoria between 1989-1992 which sought to take into account the extent to which impairment affects capability to work given the individual workers’ personal circumstances.26
Q43. Does the Comcare scheme sufficiently support injured employees with no potential to return to work?
If there is no potential to return to work, the AMWU recommends that the scheme have a different case a management model, and possibility team, to cater for these injured worker's needs. These workers should not be subject to ongoing scrutiny and driven to accomplish outcomes which conflict with medical advice, having no potential for a return to work. Rather these workers should be supported to maximise their quality of
26
Aurbach, R. and Clayton, A. (2012) ’Converting Impairment to Disability: Why It Matters’, Journal of the
International Association of Industrial Accident Boards and Commissions, Vol. 49(1): 81-110. See also the Disability and Handicap Severity Scales referred to in Aurbach and Clayton (2012), available here: https://catalogue.nla.gov.au/catalog/2607399
33
life. Any assessment of potential to return to work must be decided with the worker and their representatives. Due to the failure of the current scheme to account for superannuation and the absence of defined retired benefits scheme medical and weekly benefit payments should continue until the worker is deceased.
For some of these workers' the ability to exit the scheme entirely with dignity via accessing common law is the best way to support injured workers.
Q44. Should the scheme allow more options to finalise claims, including lump sum payments? What safeguards should be in place?
Whilst we support statutory lump sums, we do not support this as a mechanism of extinguishing a claim. Only redemption or common law should extinguish a claim.
In relation to redemptions, there must be safeguards in place including independent legal and financial advice funded by the scheme to a worker before they take a redemption. In other words, an injured worker should not be a passenger as part of this process, but be in a position to make an educated decision on what is in their best interest. To maintain sustainable funding of the scheme, there should be consideration about criteria which should be met to access a redemption.
Q45. Should access to common law continue to be restricted?
No.
Q46. If access to common law continues to be restricted, should there be a greater right to redeem compensation benefits?
This is a false equivalence, as common law is suing for negligence. Redemption is a lump sum payment for future entitlements and the purpose of it is to finalise a claim.
Q47. Do the provisions in the SRC Act aimed at preventing double-dipping in relation to like-remedies need changing following Comcare v Friend?
We refute the framing of double dipping. The compensation provided under anti- discrimination legislation is not compensation for harm, but for contravening the legislation. This position is supported by the case of Comcare vs. Friend (2021). In relation to Comcare vs. Friend, the Federal court distinguished between compensation for a workplace injury and compensation for contravention of anti-discrimination law.
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The SRC Act should explicitly accommodate for workers having entitlements from more than one statutory source related to an injury, and that where such compensation is not for the same purpose i.e. weekly benefits (wage replacement), shall have no impact on a worker's entitlement under this Act.
Q48. Should there be any adjustments to workers’ compensation payments for compensation or support from other sources? For example, what impact should the receipt of statutory entitlements and other income have on the entitlement to, and calculation of, compensation?
If a worker was being fully compensated for loss under the SRC Act, and another statutory scheme was compensating for the same loss, then it may be appropriate for adjustment in those circumstances. Equally if an injured worker loses a statutory payment as a result of the injury, it would be fair for the SRC to compensate for the loss of that payment. For example, if super payments cease, the scheme needs to cover these as well.
The AMWU has consistently called for fair compensation, we define fair compensation as full (no gap) compensation for any loss suffered because of a work injury, no less and no more.
Rehabilitation and Return to Work
Q49. Does the Comcare scheme provide suitable criteria and arrangements to support: a. Early intervention?
The AMWU note that early intervention is not provided under the SRC Act but is rather a model which was adopted and exploited by Comcare who have taken no responsibility for the harm which has been caused to countless workers from its misuse. The AMWU strongly opposes any definition of early intervention that leaves open the possibility of employers utilizing the scheme to dissuade workers from making a claim as evidence would support is currently the case. The risk of this can be mitigated against by adopting the proposed definition of early intervention developed based on independent research commissioned by SafeWork Australia described below, and through the adoption of provisional liability.
We note that a 2014 Commonwealth report into the Comcare early intervention scheme defined early intervention as ‘any activity that responds to an identified issue at the earliest opportunity’ which the AMWU submits is too broad to constitute an
35
effective definition for the purpose of the Act.27 The 2014 report highlighted a key problem with early intervention (seen as a benefit from the perspective of employers) is that the one of the main reasons cited for its use was ‘minimising the likelihood of a workers’ compensation claim’.28 We submit that our members’ experiences attest to this being a reality of the early intervention scheme and that this is highly detrimental to injured workers and works against the key proposed object of workers’ compensation which is to ensure appropriate and timely compensation for injured workers.
Independent scholarly research into best practices for early intervention in workers’ compensation, published by SafeWork Australia in 2024, demonstrates that there is lack of consensus on what constitutes early intervention.29 It was agreed however that
“early intervention required an assessment of some kind followed by an action, or response” and did not include actions not known to employers such as an employee accessing an EAP program, and did not include actions taken 3 months after the incident.30 The researchers noted that when early intervention is used prior to a claim being made, this then created the opportunity for “employers to try to prevent a worker from exercising their right to make a claim”.31 They noted other risks of early intervention including the risk that cases are only escalated to claim level if deemed
‘serious’ but this seriousness is determined by the employer, that workers’ (especially those that are vulnerable such as young or migrant workers’) do not have access to information concerning their right to make a claim and erroneously viewed early intervention as part of the claims process, and that interventions offered via early intervention are ‘less visible’ in the system and go unaccounted for.32
In a survey of our members, the AMWU heard that early intervention is used to divert workers from making a claim, with companies arguing that they will ‘look after’ the worker because they ‘are a family’ and therefore there is no need to make a claim. 33
We propose a definition of early intervention as the development, implementation, monitoring and review of a program by the employer with the workers and their representatives to assist, support and manage workers who are suffering workplace injuries and ensure their timely return to work, implemented following the initial notification to the insurer.
27
Comcare (2014) Early Intervention Report. Retrieved from: https://www.comcare.gov.au/about/forms- pubs/docs/pubs/research/early-intervention-report.pdf pp. 1
28
Comcare (2014) Early Intervention Report. Retrieved from: https://www.comcare.gov.au/about/forms- pubs/docs/pubs/research/early-intervention-report.pdf pp. 1
29
https://www.safeworkaustralia.gov.au/doc/early-intervention-workers-compensation-process
30
https://www.safeworkaustralia.gov.au/doc/early-intervention-workers-compensation-process pp. 3
31
https://www.safeworkaustralia.gov.au/doc/early-intervention-workers-compensation-process pp. 3
32
https://www.safeworkaustralia.gov.au/doc/early-intervention-workers-compensation-process pp. 28
33
Survey of AMWU members, October 2024.
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All workers enrolled in early intervention must receive clear and accessible guidance on how to make a workers’ compensation claim, including their rights and entitlements, and the role of the relevant union in assisting workers. This definition mitigates the risks discussed above and ensures the early intervention scheme is designed to support injured workers to return to work, rather than allowing employers to avoid claims. Early intervention must not be an alternative, employer-run program separate to Comcare as reported by AMWU members, but should refer only to the planned system(s) to support those that have been injured at work.
If early intervention is not intended as a way to divert workers from making claims, this definition should be agreeable to all parties. b. Return to work?
No. The National Return to Work Strategy 2020-2030 outlines 10 guiding principles for return to work (Safe Work Australia, 2019). The Strategy includes an understanding of the complex nature of return to work for different workers:
“‘Return to work’ is about helping workers get back to work or stay at work while they recover from their work-related injury or illness. It is a complex process in which many factors at the individual, organisational and system levels interact to influence a worker’s recovery, absence from work and the durability of their return to work. A positive return to work involves all systems working well together.” 34
Every employer in the scheme must have in place policies and procedures for the management of return to work that have been agreed by its workers and their representatives. This could include job modification, rehabilitation, retraining
(vocational education) and assistance with job seeking. There is a need to consider multiple factors in the determination of suitable duties during the return to work process.
Factors when identifying suitable duties options within the workplace include but are not limited to:
• Nature and severity of the worker’s injury.
• Duties are deemed safe and in line with certified physical and psychological
capacity.
• Contain as many tasks as the worker’s normal role as possible.
• Considers the workers age, education, skills and experience.
34
Safe Work Australia (2019) The National Return to Work Strategy 2020-2030. pp. 8. Available: https://www.safeworkaustralia.gov.au/doc/national-return-work-strategy-2020-2030
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Duties may be provided in different ways (same or different workplace, same job with different hours, modified duties, different job altogether or a combination of the above, or vocational education). Discussions about possible work options should take place with the worker and supervisor in considering suitable work options. These discussions should consider how the workplace could potentially be modified or if equipment can be prescribed to accommodate the worker and ensure their safe return to work.
As previously stated, we oppose a continuation of the Rehabilitation Authorities which centralise all control of return to work with the employer. The AMWU support injured workers being central to a workers return-to-work program and given agency with respect to decision making. Injured workers should be afforded specific legislated rights to union representation at all stages of a claim including their return to work.
Q50. Should the Comcare scheme provide for provisional payments? If so, what should be the length and amount of any such payments, and how/whether to recover payments if ultimately the injury is not due to work?
The AMWU strongly supports provisional liability and submits that provisional liability precludes any recovery of payments from a worker. In relation to the previous discussion of early intervention, one of the positive enablers of effective early intervention is provisional liability (Safe Work Australia, 2024).35
Payments should cover 100% of weekly wages or any loss suffered against average weekly wages and any costs associated with reasonable medical expenses until such time as the claim is determined by the insurer. In this context there is no requirement for the legislation to determine a length of such payments. The alternative it to impose an arbitrary time limit with a default claim acceptance if the insurer has not determined liability by its conclusion, this alternative may present issues for some complex injuries.
Research by Cocker et.al. (2018) demonstrates the importance of early notification of a claim and timely processing of claims for improving return to work outcomes. They show that prolonged processing times including time taken to notify, file, adjudicate and start payments all contribute to the likelihood of a claim becoming long term
(Cocker et.al., 2018). This can be avoided through early notification by a worker as soon as possible, and employer notification to the insurer within 48 hours of becoming aware of the likelihood of a compensable injury.
35
Safe Work Australia (2024) ’Early Intervention in the Workers’ Compensation Process’. Available at: https://www.safeworkaustralia.gov.au/doc/early-intervention-workers-compensation-process pp. 34.
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Q51. Should the SRC Act provide for greater oversight of rehabilitation authorities and rehabilitation providers?
As previously stated in this submission the AMWU does not support the ongoing concept of Rehabilitation Authorities. The conflict of interest which arises with employers being rehabilitation authorities is now exacerbated with the majority of the scheme now under control of self-insured private corporations who operate solely for profit. The level of control imposed on workers has historically been highly negative for injured workers. The removal of control from workers in determining their return to work has detrimental effects on their return-to-work outcomes and increases rates of disputation.
Conflict continually arises with the employers requiring an IME, as opposed to the insurer, as is the case for premium holders in other schemes. This leads to adverse compensation decisions and adverse employment outcomes for those injured workers.
We do however support a role for return-to-work co-ordinators within all scheme employers who have been trained to a standard which will need to be determined, provided with authority to make decisions and able to support injured workers.
As noted in the above Governance section, the AMWU suggests the establishment of a tripartite ministerial council. Rehabilitation providers should be overseen by a scheme regulator in additional to the tripartite ministerial council.
Q52. Should the SRC Act provide Comcare with greater regulatory powers in relation to rehabilitation?
Yes. The SRC act should provide Comcare (including any Inspectorate of the SRCC) as a regulator with the ability to issue RTW direction notices, improvement notices, on the spot compliance fines, and the ability to take employers to a court where serious contraventions occur.
There must be the ability to suspend or cancel licences for self-insured employers where there is repeated return to work or rehabilitation offences.
Dispute Resolution
Q53. What is your experience of dispute resolution in the scheme? What improvements would you suggest arising from that experience?
Injured workers require fast, accessible and low-cost dispute resolution processes. The current Comcare system via the Administrative Appeals Tribunal does not provide these services to workers. We submit that the Comcare disputes processes should be
39
replaced with a system that allows the speedy resolution of issues as currently takes place in some other Australian jurisdictions.
The AMWU recommends that the Act should include a statutory dispute resolution process which includes timeframes as well as a default dispute resolution process, in a similar modal as the WHS default issue resolution process (see c22 WHS Reg) to manage injury management /return to work disputes.
Workers’ experience of dispute resolution demonstrates the way the appeals process creates additional stress on top of navigating a workplace injury, as explained by an
AMWU member:
“Going to the AAT is also very time consuming. Again, I think it’s terrible and is part of
Comcare’s intention to stall the process. Then at AAT, things can be agreed upon or you have to take it to federal court like I did. As a normal person you’re coming up against an entire system with very little knowledge about what you’re actually going up against and what protections you have. Once you go down the AAT or court process you end up no longer talking to your case manager or employer. You now talking to a lawyer or a team of lawyers who don’t want to know about your injury or suffering. They care about making sure the t’s are crossed and the I’s are dotted. Also, their bottom line and what their share will be. The whole thing is so dehumanising.”
Q54. Should the legislative framework provide for pre-litigation dispute resolution processes prior to external review by the Tribunal? If so, at what point in the process and by whom?
The scheme doesn’t provide for a dispute resolution procedure leading up to, or prior to, the AAT in the legislation. The AMWU recommends that such a disputes procedure be developed and that any such procedure ensures workers have access to representation.
Q55. Should the legislative framework be changed to adopt best practice in dispute resolution from other schemes? If so, please specify.
Yes. At present there is an informal review process but not a dispute procedure. The
AMWU does not consider reviews of decisions to be part of a formal dispute procedure.
A dispute procedure should involve both parties and seek to resolve the dispute, and be an expedited procedure that involves identifying parties, having a discussion, resolving the issue or escalating it to the AAT.
The AMWU has previously written to the Attorney General in relation to the AAT and we reiterate the concerns about the structure, funding of and access to the AAT.
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Despite workers’ compensation being a high workload area for the AAT, Comcare disputes are dealt with by the General Division of the AAT. This means Comcare matters are not reviewed by statutory specialists. The experience of AMWU member Wayne attests to the problems with this, including a lack of understanding, experience and expertise with the Comcare scheme on behalf of those reviewing appeals. Workers’ compensation should form a standalone division of the AAT to develop specialists in this field, with the aim of reducing appeals processing time and improving the experience of the AAT for injured workers.
The AAT also needs to be funded by the scheme to enable this additional resourcing, as it is currently funded through an annual appropriation. This is even though self-insurers now comprise over half of the scheme, gaining a free ride at the expense of taxpayers and an advantage over industry competitors.
In relation to access, the funding of workers legal costs is not a feature of the SRC Act, meaning that unless a worker succeeds with their matter, they pay the costs of legal representation for a disputed claim. This has the perverse effect of dissuading workers from pursuing their entitlements often at a time when they are in great need of support.
This runs counter to the AATs legislative objectives of being accessible and fair. It is customary for workers’ compensation schemes to provide access to legal representation to injured workers subject to a dispute from their employer. In some schemes this includes the employment of a panel of authorised lawyers who specialise in workers’ compensation with appropriate disincentives to mitigate against predatory behaviour. For examples of ways to fund this, see Scheme mediators in NT, or
Independent Legal Assistance and Review Service (ILARS) in NSW.
While The AMWU supports the adoption of best practice dispute resolution, the union does not support the suggestion that any other scheme has yet to achieve this.
Q56. Is there a role for medical panels to contribute to the dispute resolution process, and if so, how should such a panel be constituted and should the panel’s opinion be binding?
Yes, there is a role for medical panels, they should be made up of equal number of specialists nominated by the social partners, on fixed terms such as three years, which come under review by the oversight governance body (tripartite ministerial council). The panel’s opinion shouldn't be binding but rather offer an advice to the presiding
Commissioner who makes the final decision.
The AMWU notes in other schemes across the country where medical panels have been constituted, those panels have lost their independence over time, favouring scheme finances rather than workers compensation legislation being beneficial to workers. This risk needs to be mitigated against with appropriate disincentives.
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Q57. How can dispute resolution processes be structured to limit further harm to claimants? For example, should there be dispute resolution at the reconsideration stage? Who should pay legal costs associated with the reconsideration?
The AMWU does not support the proposition of reconsideration, it should not form part of the legislation. We are not aware of it being a part of any other workers compensation scheme in Australia and should provisional liability be adopted would serve no purpose moving forward. Any evidence an employer wishes to put forward can be done so before liability is determined. To entitle one party to gather further information, as is currently the case with rehabilitation authorities following a decision has been made, is unfair and unjust.
We are concerned by reports of doctor shopping. The current legislation encourages employers to damage claims at reconsideration by doctor shopping until they can acquire a report that suits their purposes, forcing workers into a lengthy process at the
AAT.
If a claim is denied at a later date then that should be a trigger for dispute resolution.
This shouldn’t happen via a reconsideration process.
All legal costs associated with a dispute resolution process should be met by the scheme.
Q58. Do you have other suggestions for improvements to the processes for resolution of disputes? For example, other avenues for the resolving of disputes or providing for ‘all in’ settlements?
The adoption of a return-to-work inspectorate (as in Victoria, NSW and other jurisdictions). This has been a positive initiative for injured workers and meeting the objectives of these legislations.
Timely access to the AAT (within 2 weeks of notice), to be enabled by a standalone section funded by scheme employers to improve efficiency of the process.
Scheme Administration
Q59. Should the Comcare scheme continue to provide for delegated claims management arrangements?
No. See response to question 26. There is ample evidence that delegated claims management is not working in the interest of injured workers. The Victorian case is particularly instructive as it demonstrates that even with substantial reforms, the
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commercial imperative of delegated claims management is fundamentally incompatible with a worker-centric compensation scheme. In 2016 and 2019 the
Victorian Ombudsman investigated the management of complex workers’ compensation claims by scheme agents, producing two damning reports describing evidence of systemic unreasonable decision making by scheme agents.36 The commercial nature of scheme agents was found to create perverse incentives to reject claims, including appeals that agents knew would likely be overturned, causing distress, financial burden and psychological harm to injured workers:
“The evidence suggested that in the case of complex claims, financial reward and penalty measures in agents’ contracts with WorkSafe were driving a focus on terminating and rejecting claims to maximise profit, at the expense of sound decision making.”37
Following the 2016 investigation, WorkSafe Victoria implemented some changes including training for agent staff and changes to rewards and penalties, but continued to receive a similar volume of complaints. The 2019 investigation found evidence that the changes made in 2016 were not enough, and that the “evidence points to this being a systemic problem.”38 The 2019 report found scheme agents engaged in selective use of evidence, surveillance of workers, ’doctor shopping’, posing leading questions to
IME’s or doctors, and using IME‘s with the incorrect specialty. There were also issues with scheme agents engaging in unfair return-to-work directives, agents acting unreasonably during disputes in order to deter workers’ from appealing their claim, and agents making decisions contrary to medical panels. 39 The Ombudsman found that overall, the commercial imperatives of outsourced claims management made it an unsuitable way to manage workers’ compensation claims:
“Agents’ continued focus on terminating claims and maximising profit. This included agent staff emails where staff referred to claims which achieved a financial reward as
‘wins’; congratulated staff for terminating claims; discussed the monetary value to the agent of terminating individual claims; and referred to targets for terminating claims.”
36
https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/worksafe2-follow-up- investigation-into-the-management-of-complex-workers-compensation-claims/#the-ombudsmans-
2016-investigation
37
https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/worksafe2-follow-up- investigation-into-the-management-of-complex-workers-compensation-claims/#the-ombudsmans-
2016-investigation
38
https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/worksafe2-follow-up- investigation-into-the-management-of-complex-workers-compensation-claims/#the-ombudsmans-
2016-investigation
39
https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/worksafe2-follow-up- investigation-into-the-management-of-complex-workers-compensation-claims/#the-ombudsmans-
2016-investigation
43
Outsourced claims management is not a feature of best practice workers’ compensation schemes in overseas jurisdictions, and as noted by Purse (2009), is a relatively recent development in Australian schemes. Based on the evidence from
Purse (2009) and the Victorian Ombudsman reports, there is little evidence that delegated claims management is more financially sustainable that insourcing or that it benefits injured workers. The AMWU believes the claims management process should be in-sourced, and that a properly resourced and fully funded scheme can ensure appropriate training and resources are available to claims managers.
Q60. What aspects of the delegated claims management arrangements should remain?
What changes are needed?
None. See evidence above.
Q61. Are further changes required to the claims decision-making framework to improve outcomes and ensure fair, accurate and timely decision making? If so, please specify.
It is noted that the level of disputation of Comcare claims exceeds all other schemes in
Australia, which is a proxy for indicating that the current decision-making framework is not fit for purpose. The Comcare dispute rate is 50% higher than the national average.40
Whilst the AMWU does not have a decision-making framework, it would be recommended to look at schemes that have the least number of claims disputations or a better model. Purse (2013) suggests the need for a worker-centric approach to claims management rather than a management-centric approach.
From the time a worker notifies their employer of a work injury, we suggest a period of 5-
7 days until notification of an outcome.
Q62. How can unintended consequences best be avoided?
Unintended consequences can be avoided through consistency in decision making.
This means having a claims management framework in place, improving training of claims managers and supporting the career progression of claims managers.
When negative consequences for a worker result from the decision making framework, there must the ability for claims managers to seek flexibility where they see unintended consequences for a worker and to remedy this by going outside of the normal decision making framework. For example, in situations where an injury or rehabilitation for an
40
Safe Work Australia (2024) Jurisdictional Comparison 2022-2023. Available: https://data.safeworkaustralia.gov.au/interactive-data/topic/jurisdictional-comparison
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injury requires further context from the worker, workplace and rehabilitation provider.
As noted by one of our members:
“Everything is not black and white, there needs to be more consideration for the grey area of these sort of issues. There are lots of injuries and claims that rely heavily on the context to fully understand and support a worker. There needs to be more understanding and awareness of that in Comcare.”
The AMWU thanks the panel for the opportunity to provide recommendations on behalf of our members and remains available for further consultation or to provide clarity with regards to any matters in this submission.
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Bibliography
Creyke, R. and Ghaeni, J (n.d.) Australian Workers’ Compensation Law and its
Applications – Definitions of Employees and Workers. Report for Office of the Australian
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Cocker F., Sim MR., Kelsall H., Smith P. (2018) ‘The Association Between Time Taken to
Report, Lodge and Start Wage Replacement and Return-to-work Outcomes’, Journal of
Occupational and Environmental Medicine, Vol. 60(7): 622-630.
Lane et.al. (2020) ‘Step-downs reduce workers’ compensation payments to encourage return to work: are they effective?’, Occupational and Environmental Medicine, Vol.
77(7): 470-477.
Purse, K. (2009) ‘Outsourcing myths and workers’ compensation claims administration’, Australian Journal of Public Administration, Vol. 68(4): 446-458.
Purse, K. (2013) ‘Workers’ compensation and the impact of institutional barriers on return-to-work outcomes’, Journal of Health, Safety and Environment, Vol. 29(4): 209-
220.
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