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Australian Council of Trade Unions

19 Dec 2024

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Putting injured workers first:
A comprehensive review of the
Safety Rehabilitation and
Compensation Act
Submission by the Australian Council of Trade Unions to the
Public consultation issues paper

ACTU Submission, 19 December 2024
ACTU D. No 87/2024
Contents

Table of Contents
About the Australian Council of Trade Unions..................................................................................... 5

Introduction ........................................................................................................................................... 6

SRC Act review discussion questions .................................................................................................. 9

Best practice workers’ compensation ............................................................................................. 9

1. What are the primary objectives of a workers’ compensation scheme? Should those
objectives be expressly stated in the Act? .................................................................................. 9

2. What are best practice design principles for a workers’ compensation scheme? For
example, can you provide examples (from other schemes) of best practice approaches to
early intervention, rehabilitation (including supporting employees with psychological
injuries), vocational support and return to work? ..................................................................... 10

3. 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? ................................................................................................................ 11

Workforce challenges ..................................................................................................................... 12

4. What changes are required to address workforce challenges to maintain an effective and
sustainable Comcare scheme? .................................................................................................. 12

5. What changes are required to the Comcare scheme to better accommodate remote work
and working outside ‘traditional’ work hours? .......................................................................... 12

6. What changes are required to the Comcare scheme to better manage complex
psychological claims? ................................................................................................................. 13

7. What changes are required to the Comcare scheme to respond to climate change risks?
..................................................................................................................................................... 15

Employee’s experience of the scheme .......................................................................................... 16

8. What is your claim experience? Positive, negative or neutral? ........................................... 16

9. Explain what aspects of the Comcare scheme work well? For example, early intervention
initiatives or the claim-making process or rehabilitation and return to work support............ 16

10. What changes to the Comcare scheme would better support recovery and wellbeing and
improve return to work outcomes? ............................................................................................ 16
11. What changes to the Comcare scheme would better support workers with life-changing
injuries and illnesses? ................................................................................................................ 17

12. What changes to the Comcare scheme would better support workers with psychological
injuries and illnesses? ................................................................................................................ 19

13. What changes to the Comcare scheme would better support families of workers who
have suffered serious injury, illness or death? ......................................................................... 20

14. Do you have any suggestions for improving and building the competencies of claims
managers?................................................................................................................................... 20

Experience and outcomes of specific groups ............................................................................... 21

15. What is the claim experience for women, First Nations workers, older workers or other
diverse worker groups? .............................................................................................................. 21

16. What aspects of the Comcare scheme work well for diverse groups? ............................. 22

17. What changes are required to the Comcare scheme to ensure injured workers with
diverse backgrounds or needs receive appropriate support? ................................................. 22

Scheme coverage............................................................................................................................ 23

18. What are the risks and issues that arise from current coverage of the Comcare scheme?
..................................................................................................................................................... 23

20. What criteria should apply for corporations to join the Comcare scheme? ..................... 24

WHS Act coverage – discussion questions ................................................................................... 25

21. What are the implications for non-Commonwealth licensees in maintaining or ending the
transitional period for their coverage under the WHS Act? ...................................................... 25

22. Should self-insured licensees be regulated by Comcare under Commonwealth WHS laws,
or state and territory WHS laws and regulators? Please give reasons. ................................... 25

Governance arrangements - discussion questions ...................................................................... 26

23. Does the SRC Act suitably define the roles and responsibilities of: ................................. 26

• Comcare? ............................................................................................................................ 26

• SRCC? .................................................................................................................................. 26

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24. 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?.......................... 26

25. What changes are required to ensure the SRCC has the powers and responsibilities to
effectively regulate self-insurance licensees and the public sector? ...................................... 27

26. Does the existing framework provide appropriate oversight and monitoring, compliance
and reporting arrangements for: ................................................................................................ 28

• Comcare? ............................................................................................................................ 28

• Self-insured licensees?....................................................................................................... 28

• Delegated claims management arrangements ? ............................................................. 28

Rehabilitation authorities? ......................................................................................................... 29

Workplace rehabilitation and other service providers? ............................................................ 29

27. 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? ...................................................................................................................................... 30

Financial management and viability .............................................................................................. 30

28. What changes are required to the Comcare scheme to ensure future scheme financial
sustainability? ............................................................................................................................. 30

29. Is the scheme’s approach to prudential management adequate for Comcare’s
compensation liabilities? If not, what alternatives do you suggest? ....................................... 30

30. Should Comcare be able to access, invest and use money from premiums to fund
proactive activities? .................................................................................................................... 31

31. Are changes required to the licence fee setting provisions under the SRC Act to allow for
effective and efficient cost recovery? ........................................................................................ 31

Social partner involvement and tripartism .................................................................................... 31

32. Are the requirements under the SRC Act for membership of the SRCC appropriate? .... 31

33. 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? .............. 31

34. Do you have suggestions for improvements to facilitate tripartism within the Comcare
scheme? If so, what are they? ................................................................................................... 32

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Scheme entitlement – discussion questions ................................................................................ 33

35. Does the definition of ‘employee’ in the SRC Act reflect contemporary working
arrangements? Are the deeming provisions adequate? ......................................................... 33

36. 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? .......................................................................................... 34

38. Is the current threshold for liability for diseases (significant contribution) appropriate? 35

39. Are the current exclusions under the SRC Act appropriate? ............................................. 35

40. 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? ................................................................................................................ 36

41. What changes are needed to best determine fair compensation for medical treatment
and rehabilitation and household and attendant care services? ............................................ 37

42. How should the permanent impairment provisions be improved? ................................... 37

43. Does the Comcare scheme sufficiently support injured employees with no potential to
return to work? ............................................................................................................................ 38

44. Should the scheme allow more options to finalise claims, including lump sum
payments? What safeguards should be in place? .................................................................... 39

Interaction with other schemes and sources of income .............................................................. 39

45. Should access to common law continue to be restricted? ................................................ 39

46. If access to common law continues to be restricted, should there be a greater right to
redeem compensation benefits? ............................................................................................... 40

47. Do the provisions in the SRC Act aimed at preventing double-dipping in relation to like-
remedies need changing following Comcare v Friend? ............................................................ 40

Rehabilitation, return to work and early intervention ................................................................... 41

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49. Does the Comcare scheme provide suitable criteria and arrangements to support: ...... 41

a. Early intervention? .................................................................................................................. 41

b. Return to work?....................................................................................................................... 42

51. Should the SRC Act provide for greater oversight of rehabilitation authorities and
rehabilitation providers?............................................................................................................. 46

52. Should the SRC Act provide Comcare with greater regulatory powers in relation to
rehabilitation? ............................................................................................................................. 46

Resolving dispute in the scheme ................................................................................................... 47

53. What is your experience of dispute resolution in the scheme? What improvements would
you suggest arising from that experience? ............................................................................... 47

54. 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? . 47

55. Should the legislative framework be changed to adopt best practice in dispute resolution
from other schemes? If so, please specify. .............................................................................. 48

56. 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? ... 48

57. 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? .............................................................. 48

58. 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?................................................................................................................................ 49

Scheme administration .................................................................................................................. 49

59. Should the Comcare scheme continue to provide for delegated claims management
arrangements? ............................................................................................................................ 49

60. What aspects of the delegated claims management arrangements should remain? What
changes are needed? ................................................................................................................. 49

61. 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. ...... 49

62. How can unintended consequences best be avoided? ..................................................... 49

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Conclusion ........................................................................................................................................... 49

References .......................................................................................................................................... 49

About the Australian Council of Trade Unions
Since its formation in 1927, the Australian Council of Trade Unions (ACTU) has been the peak trade union body in Australia. It has played the leading role in advocating for and winning the improvement of working conditions, including on almost every Commonwealth legislative measure concerning employment conditions and trade union regulation. The ACTU has also appeared regularly before the Fair Work Commission and its statutory predecessors, in numerous high-profile test cases, as well as annual national minimum and award wage reviews and is the worker representative member of Australia’s national tripartite work health and safety policy agency Safe Work Australia.

The ACTU is Australia’s sole peak body of trade unions, consisting of affiliated unions and state and regional trades and labour councils. There are currently 36 ACTU affiliates who together have over 1.6 million members who are engaged across a broad spectrum of industries and occupations in the public and private sectors. There are a number of affiliates that represent members who are in the Comcare scheme across the Australian Government, Australian
Government authorities and corporations and corporations who have a licence to self-insure under the SRC Act.

In making this submission, we also take the opportunity to endorse the submission of our affiliates, the Australian Nursing and Midwifery Federation (ANMF), the Australian Manufacturing
Workers’ Union (AMWU), the Community and Public Sector Union (CPSU) and the Community and
Public Sector Union/ Civil Service Association (SPSU/CSA). We thank the panel for the opportunity to share our views on this important matter and welcome further engagement on this issue.

The Australian Council of Trade Unions acknowledges the Traditional Custodians of the lands and waters throughout
Australia. We pay our respects to Aboriginal and Torres Strait Islander communities, their continuing culture, and to
Elders past and present.

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Introduction
Healthy and safe work is a fundamental human right and essential to decent work. Every worker has an equal right to a healthy and safe working environment irrespective of employment arrangements or personal attributes.

Health is the dynamic balance of physical, mental and social well-being, including the ability to adapt and self-manage disease or injury. Good work can contribute to our health and well-being by providing a secure income, a sense of purpose, and opportunities for growth and development along with important social networks and supports.

Work, including working conditions, work practices, workplace culture, work-life balance and injury management programs are key determinates of health and wellbeing.

Workers’ compensation schemes are critical to fair, inclusive and productive workplaces. Many injured workers feel vulnerable after sustaining an injury or illness, and the process of applying for workers’ compensation is seen as adding additional stress to what was already a difficult time.2 Workers who make a workers’ compensation claim feel largely uninformed about the process, are drip-fed information and may find the system confusing and difficult to navigate.3

Considering this, workers who are injured or made ill from work must be provided the highest level of support. This includes financial and vocational support as well as the ability to seek and receive treatment, rehabilitate and return to meaningful, healthy and safe work. Effective workers’ compensation arrangements also improve equity and participation in work and enable workers to remain connected to work whilst recovering and rehabilitating.

The federal workers’ compensation scheme (the Safety Rehabilitation and Compensation Act
1988) is nearly 40 years old. Enacted in 1988 those covered by the scheme were largely ‘white collar’ workers employed in the Australian Public Service (APS). These workers were less likely to undertake physically hazardous tasks and consequently more likely, if injured, to return to their pre-injury duties. Equally, their employers were generally more likely to provide safer working environments and comply with work health and safety standards.

That is no longer the case.

Since 2006 a number of national corporations, many of whom operate in a range of dangerous industries, have entered the Commonwealth’s scheme. Whilst previous Labor Governments have

2 The Behavioural Change Collaborative. (2022). Australian workers' understanding of workers' compensation
systems and their communication preferences: Final report (p. 28).
3 ibid

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attempted to stop this trend by imposing a moratorium on new entrants, Ministers under the
Howard, Abbott, Turnbull and Morrison Governments have opened the floodgates to national corporations determined to reap the benefits of some of the inferior workers’ compensation scheme. In addition to this, the nature of work within the APS has changed substantially with a greater proportion of workers employed in front-line service delivery than ever before where they are exposed to serious physical and psychological hazards.

The result of this is a scheme profile that today bears little resemblance to its past. The most striking example of this is the fact that whereas in 1998 most workers covered by the scheme were employed in public administration and safety, today they comprise 24.4% of those covered under the Safety Rehabilitation and Compensation Act 1988 (SRC Act).4

Enacted in 1988 the pension-type scheme saw the near complete removal of common law rights to sue an employer for negligence. This means that those who are seriously injured or made ill through the negligence of their employer have little hope for restoration, with workers left trapped in a scheme that counts down until the injured worker turns 65, when benefits cease, sometimes leaving these workers hundreds of thousands of dollars worse off than compared with all other workers’ compensation schemes.

Not only does the scheme restrict workers’ access to common law and provide inferior permanent impairment compensation when compared to other schemes the overall claims management performance and process is amongst the worst in the country. Workers in the scheme are both more likely to experience disputation, they are also more likely to see these disputes protracted, with a little over a third (38.8%) resolved within 9 months of lodgement. This is compared to more than 90% for all other jurisdictions, except the only other Commonwealth workers’ compensation scheme, Seacare.5

In addition to the poor performance, the claims process overwhelmingly favours employers and it is not surprising that so many have sought to gain entry to the scheme. Unlike other workers’ compensation schemes workers face numerous hurdles from the claiming of individual medical expenses to the ability of the employer to deny the claim or cease payments at any stage if an error is made. This process leads to an overly legalistic and drawn-out process for workers often resulting in secondary psychological injury which, unlike in other schemes, cannot be compensated.

4Comcare Scheme - Workers’ Compensation Statistics 2019-20, July 2020, page 6.
5Safe Work Australia. Comparative performance monitoring report 25th edition: Workers' compensation disputes (p.
7).

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Additionally, the limitation on reimbursement for legal assistance further disadvantages workers and has resulted in fewer law firms willing to assist claimants.

The poor claims process, management performance and the significant changes in the composition of the scheme are just a few issues that demand immediate reform of the SRC Act.

These reforms must ensure that the scheme offers fair, efficient and equitable access to comprehensive workers’ compensation, providing workers with timely, durable and the highest attainable health outcomes whilst delivering no disadvantage to their current and future employment. It should balance the need to allow for unrestricted common law for workers who are injured through their employer's negligence and permanent impairment compensation with the need to provide longer-term statutory benefits for seriously injured claimants.

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SRC Act review discussion questions
Throughout this submission when there is a reference to injured workers or employees, it also refers to those who have contracted an illness, as appropriate.

Best practice workers’ compensation

1. What are the primary objectives of a workers’ compensation scheme? Should those objectives be expressly stated in the Act?
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 return to meaningful work and this should be the intent of any workers’ compensation legislation. A best practice workers’ compensation scheme should not only facilitate workers access it should actively encourage those that are injured to seek support.

We support the inclusion of an objects clause in the Safety, Rehabilitation, and Compensation
Act (SRC Act). We believe that this could be articulated as a set of principles and objectives. Such a clause should be worker-centric, ensuring that the legislation prioritises the health, safety, and fair treatment of workers.

In support of this, the following objectives and principles shall be set out in the Act:

• Assist in securing the health, safety and welfare of workers and preventing work-related
injury (both physical and psychological injuries and diseases).
• Encourage more workers who are injured out of or in the course of employment to access
workers’ compensation by making the process easier and more accessible.
• Provide timely and effective 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 and their
dependents/families.
• Enhance system flexibility to adapt to various work situations.
• Maintain a fully funded scheme.
• Improve workplace health and safety and reduce the social and economic costs of
accident compensation to the community.
• Encourage and facilitate unions and employer organisations to assist workers and
employers on matters related to workers’ compensation and rehabilitation.
• Reducing the level of disputation within the scheme and timely dispute resolution.

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2. What are best practice design principles for a workers’ compensation scheme? For example, can you provide examples (from other schemes) of best practice approaches to early intervention, rehabilitation (including supporting employees with psychological injuries), vocational support and return to work?
We believe the following recommendations, as outlined in more detail within this submission, provide for best practice scheme design:

• Introduction of provisional liability. This would include weekly payments, medical and
associated costs and the provision of suitable duties (refer to question 50).
• Placing a duty on the employer to plan for RTW and consult with the injured worker, their
representatives and the treating practitioner throughout the RTW planning process (refer
to question 49).
• Establishment of an RTW inspectorate with powers to issue notices, such as non-
compliance, improvement notices and infringement notices, in relation to RTW
obligations under the SRC Act (refer to question 49).

Injured workers must receive access to treatment and support at the earliest opportunity. As such, we note the importance of early intervention following an illness or injury. However, it is crucial to clearly define what constitutes ‘early intervention.’ Specifically, early intervention should not be misused by an employer to divert or discourage workers from filing a workers’ compensation claim. Unfortunately, this practice is common, leaving workers vulnerable. They may exhaust the limited treatment offered by their employer without lodging a workers’ compensation claim, having been assured that their employer will take care of them.

The ACTU supports the definition of early intervention provided by the Australian Manufacturing
Workers’ Union, as outlined in their submission under question 49. Specifically, early intervention should include the development, implementation, monitoring and review of a program by the employer with the workers and their representatives to assist, support and manage workers suffering workplace injuries and ensure their timely return to work, implemented following the initial notification to the claims manager. These policies and procedures should be developed in consultation with workers and their unions.

Early intervention initiatives under the Comcare scheme should be limited to those that are supported by medical advice, following a worker advising of a likely compensable injury. We consider that early intervention, for non-work conditions, is outside the scope of this review.

To avoid the widespread practice of the use of early intervention to divert workers from the workers’ compensation system, we recommend the introduction of a provision in the SRC Act that is similar to s.46A in the Workers’ Compensation and Rehabilitation Act 2003 (Queensland), which provides:

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46A Employer must not take action to avoid compensation process
(1) An employer must not give a benefit or cause detriment to a person if the reason is to
influence a worker who has sustained an injury to refrain from—
(a) making an application for compensation for the injury; or
(b) otherwise pursuing an entitlement to compensation for the injury.
Maximum penalty—500 penalty units.
(2) It does not matter if the reason is the only or main reason, as long as it is a
substantial reason.
(3) An employer gives a benefit to a person if the employer—
(a) gives or offers to give the worker or another person a financial or other benefit; or
(b) causes or permits someone else to give or offer to give the worker or another person
a financial or other benefit.
(4) An employer causes detriment to a person if the employer causes detriment to the
worker or another person.

There are several relevant reports which should be considered as part of this question, including:

• Safe Work Australia (SWA) commissioned an independent research report from Monash
University titled, ‘Early Intervention in the workers’ compensation process
• SWA Report ‘Taking Action: A best practice framework for the management of
psychological claims in the Australian workers’ compensation sector’

3. 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?
As the Comcare scheme relies heavily on written decision-making and review processes, it can result in clunky, unclear initial and secondary decisions. The legal jargon involved makes it hard for workers to understand their rights.

Streamlining worker injury notification process
We recommend introducing a requirement for employers/managers to provide an initial notification to the claims manager of an injury to a worker. This should be done within 48 hours of becoming aware of an injury which may be compensable. Once the claims manager has received an initial notification of injury it must:
1. start provisional payments within seven calendar days unless there is a reasonable
excuse not to or
2. determine liability.

The claims manager shall waive the requirement for a worker to submit a claim form if they have enough information to make a liability determination.

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Ensuring workers are aware of their right to make a workers’ compensation claim
Many workers are unaware of their rights to submit a workers’ compensation claim. It should be incumbent on employers to notify employees of their right to submit a workers’ compensation claim, just like it is for other industrial entitlements, such as those contained within the National
Employment Standards. A mechanism for this could be via the mandatory display of a poster outlining the benefits and entitlements of a claim such as the Victorian ‘If you are injured at work’ poster.6 Additionally, there should be an obligation to display this information electronically on the employer’s intranet page to ensure accessibility for all workers. There should be penalties associated with not displaying this notice.

Role of unions in helping navigate the workers’ compensation system
Unions play a key role in assisting workers to navigate workers’ compensation systems. As such, they should be referenced in the objectives clause of the SRC Act (refer to question 1). Where appropriate, relevant Comcare guidance for injured workers should refer to unions and their role in representing and supporting injured members.

Injured workers should have access to Union representation at all stages, including the union's attendance at any meeting to discuss the claim or injury management. The employer/insurer shall be compelled to facilitate any access required by a union that relates to assistance/representation of an injured worker.

Workforce challenges

4. What changes are required to address workforce challenges to maintain an effective and sustainable Comcare scheme?
Please refer to the answers below to questions 5,6 and 7.

5. 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 under the workers’ compensation scheme. For example, an injury sustained at a work Christmas party and during work-related travel or in work-provided accommodation.

6 Accessible If you are injured at work posters | WorkSafe Victoria

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Calculation of Normal Weekly Earnings (NWE)
Historically most workers under the Comcare scheme worked a ‘normal working week.’ However, with changes in the nature of work and the introduction of self-insured licensees in healthcare, construction, mining and transport, the standard for calculating Normal Weekly Earnings (NWE) should be reviewed.

Currently, when calculating the 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).

With 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. In healthcare, the earnings per fortnight could look very different, depending on the hours worked, number of nightshifts, allowances and overtime. As an example, in the Victorian scheme, the relevant period for the calculation of the pre-injury average weekly earnings is 52 weeks prior to injury.

6. What changes are required to the Comcare scheme to better manage complex psychological claims?
Comcare could consider implementing a ‘Complex Claims Unit’ to manage claims that it assesses are complex or at risk of becoming complex, based on the model recommended as part of the
WorkSafe Victoria review into complex claims management.7 The Complex Claims Unit, which would be administered by Comcare, should manage claims having regard to the individual needs of the worker and using a biopsychosocial approach. The goals of the Complex Claim Unit should be to:
• Pro-actively identify appropriate and timely interventions for the claim to maximise the
prospects of the worker being restored to their pre-injury lifestyle, including employment
• Ensure that those interventions are implemented for as long as the claim is open
• Pro-actively communicate with the worker, treating health providers, the employer and any
other relevant parties
• Ensure the claim is otherwise administered in accordance with the SRC Act.

7P. Rozen, “Improving the experience of injured workers: A review of WorkSafe Victoria’s management of complex
workers’ compensation claims,” 2021. [Online]. Available: https://www.vic.gov.au/victorian-workers-compensation-
system-independent-review

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Accessing early treatment and RTW support
Common challenges include difficulties in accessing early treatment and issues related to return- to-work (RTW) for workers with complex psychological injuries. To address these challenges, we recommend:

• Provisional approval once the claims manager has received initial notification of injury,
including for psychological injuries, to enable injured workers to access timely treatment
without financial imposition or loss of income (refer to question 50)
• Obligations on the employer to plan for RTW and requirement to consult with injured
workers, their representatives and treating practitioners in the process (refer to question
49).
• Effective consultation between the employer, the injured worker and their representative
during the RTW process in the form of a case conference. Case conferences provide an
important part of the RTW planning process. They should be conducted at a minimum
every 26 weeks unless doing so would serve little or no purpose based on the current
medical information. Written notice must be provided at least 14 days before the case
conference. An injured worker has the right to have a representative present during the
case conference (refer to question 49).

Workers with a long-term psychological injury should have the ability to choose whether they stay on the long-tail scheme or whether to exit it via a lump sum payment, discussed further in question 44.

Adoption of recommendations in relevant inquiries
There have been several inquiries that have considered how workers’ compensation systems can better manage psychological injuries, including those that are considered complex. The recommendations of these should be considered as part of this question.

In July 2020, the Victorian Government commissioned an independent review into the administration and management of complex workers’ compensation claims.8 Several of these recommendations are relevant when considering best practice management of complex psychological injuries.

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)

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In their Inquiry Report on Mental health, 9 the Productivity Commission made the following recommendation which we believe should be adopted:

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

7. What changes are required to the Comcare scheme to respond to climate change risks?
Climate change introduces several risks and potential for injuries and illnesses for workers. Firstly, extreme weather events such as flooding, hurricanes, bushfires, and droughts will significantly impact the work environment. These conditions pose direct threats to first responders and essential workers, such as truck drivers who may find themselves in the path of a bushfire.

Secondly, there are impacts of extreme heat on workers, because of global warming. High temperatures can lead to heat exhaustion and heat stress. Research indicates that temperatures around 40 degrees Celsius increase the rate of errors, which may result in a worker sustaining an injury.

Thirdly, climate change affects air quality, particularly through climate-driven bushfires. Poor air quality can have severe respiratory health impacts, with cumulative effects over time. In light of this, there is an opportunity to review and update the deemed diseases list to ensure that claims related to bushfire smoke exposure are accepted, for occupations with high exposure risks.

Finally, climate change can increase the likelihood of vector-borne diseases. Changes in climate affect vector population sizes, survival rates, and reproduction, leading to a higher risk of diseases transmitted by vectors such as mosquitoes, ticks, and fleas.11 Given the increasing likelihood of vector-borne diseases due to climate change, it is recommended that these diseases be considered for inclusion in the deemed diseases list. This inclusion is crucial for occupations with high exposure risks, such as those performing work outdoors and emergency response sectors.

9 Productivity Commission 2020, Mental Health, Report no. 95, Canberra
10 Productivity Commission 2020, Mental Health, Report no. 95, Canberra, page 66.
11 International Labour Organization. (2024). Ensuring safety and health at work in a changing climate. Retrieved

from https://www.ilo.org/media/535301/download

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Employee’s experience of the scheme

8. What is your claim experience? Positive, negative or neutral?
Unions, through direct interactions with injured workers in the Comcare scheme, are uniquely positioned to offer valuable insights on this matter. For detailed commentary, please refer to the submissions from the Australian Manufacturing Workers Union (AMWU), which include case studies from their members, as well as the Community and Public Sector Union (CPSU).

9. Explain what aspects of the Comcare scheme work well? For example, early intervention initiatives or the claim-making process or rehabilitation and return to work support.

Benefits of a long-tail scheme
We strongly support a long-tail scheme. A long-tail workers’ compensation scheme provides benefits for the duration of a worker’s incapacity, ensuring they receive ongoing support for as long as they need it. Long-tail schemes, such as this, emphasise rehabilitation and return to work programs, helping injured workers regain their capacity and return to meaningful employment. By providing continuous financial support, long-tail schemes help injured workers maintain financial stability, reducing the stress and uncertainty associated with long-term injuries.

Introduction of statutory timeframes for decision-making under the SRC Act
We acknowledge the introduction of statutory timeframes for decision-making under the SRC Act in relation to initial claims for workers’ compensation and requests for reconsiderations of determinations made by a claimant. However, we maintain that there should be penalty units for non-compliance with these timeframes. We also believe that further opportunities exist to tighten these timeframes, so that they are in line with best practice, as discussed below.

10. What changes to the Comcare scheme would better support recovery and wellbeing and improve return to work outcomes?
We recommend the adoption of something akin to the NSW Workplace Injury Management and
Workers Compensation Act 1998:

41 Object and application of Chapter

(1) The object of this Chapter is to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries.

(2) The various provisions of this Chapter apply only in respect of injuries that happen after the commencement of the provision concerned.

41A Chapter applies even when liability disputed

The requirements of this Chapter apply even when there is a dispute as to liability.

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This would assist in removing liability decisions as a determinant of the support provided for recovery and well-being and improve return to work outcomes.

Review of statutory timeframes for decision making under the SRC Act

To improve efficiency and support injured workers more effectively, we should aim for:

• Non-complex claims (not requiring a specialist report): Liability decisions within 10 days.
• Complex claims (requiring a specialist report): Liability decisions within 10 days of receiving
the specialist report.

Implementing these timeframes will help ensure timely and fair outcomes for all claimants.

We believe there are opportunities to strengthen RTW obligations and enhance regulatory powers in this area, as will be discussed in question 49.

11. What changes to the Comcare scheme would better support workers with life-changing injuries and illnesses?
The current scheme is not adequately equipped to address the unique challenges posed by chronic progressive diseases. These conditions, which worsen over time and often lead to significant long-term disability, require a more tailored approach to ensure that affected workers receive the necessary support and resources. The following points outline the key reasons why the scheme needs to be reformed to better serve individuals with these debilitating conditions.

Scheme issues workers with chronic progressive diseases
We maintain that current workers’ compensation schemes are not fit for purpose for progressive chronic diseases for the reasons outlined below.

Issues with entry into the scheme or ‘threshold’ issues

1. Time limits for claims. Different states have varying time limits for lodging workers'
compensation claims. Claims managers often use these limits to reject legitimate claims,
which is problematic for chronic diseases due to:

• Delayed diagnosis. Diagnosing chronic diseases like dust diseases involves multiple tests
and specialist consultations, often delayed, especially in regional areas. Claims managers
may incorrectly use the date of initial tests (e.g., CT scans) rather than the specialist's
diagnosis date to reject claims.

• Doctor qualifications. There is ambiguity about which doctors can make a diagnosis.
Claims managers sometimes rely on GP opinions instead of specialists, leading to claim
rejections.

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2. Psychological impact. The diagnosis of chronic diseases brings significant stress and
financial impact, often leading to denial and delayed claims. Claims managers may:

• Prolong determinations. Take a long time to decide on claims for unusual diseases or
those with mixed exposure histories.

• Use unqualified assessors. Appoint General Occupational Physicians who may not be up
to date with the latest medical knowledge, leading to claim rejections based on outdated
information.

3. Jurisdictional challenges. Workers exposed to hazards in multiple jurisdictions face issues
such as:

• Documentation gaps: Difficulty in proving employment and exposure across different
states.

• Scheme intersections: Navigating different compensation schemes, time limits, and
entitlements, with potential 'lock-out' provisions if a claim is accepted in one state but not
another.

‘In-scheme’ benefits

1. Return-to-Work (RTW) Programs:

• Inadequate fit. RTW programs are often not suitable for workers with dust-related
illnesses who want to continue working but need alternative employment.

• Health risks. Workers are medically advised to avoid dust exposure, yet RTW programs
often offer roles that still involve such exposure, leading to health risks and a lack of
confidence in the system.

• Chronic nature of disease. The ongoing nature of chronic diseases means disabilities
persist and potentially progress, indefinitely, complicating RTW efforts.

• Barriers to re-training. Older workers face barriers to re-training and re-employment.

• Regional challenges. Workers in regional areas have limited access to training and
job opportunities.

• Transition difficulties. Many workers lack formal qualifications and struggle to
transition to non-physical or technical roles, requiring significant vocational
assistance.

2. Lost Wages/Pension Entitlements:

• Inadequate wage entitlements. There are persistent issues with insufficient wage
entitlements, both in terms of minimum payments and duration.

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• Financial stress: Dust-related diseases require long-term medical surveillance, during
which workers' wages decrease, causing severe financial stress as they struggle to meet
financial obligations.

3. Impact on mental health:

• Lifelong psychological impact: Chronic dust-related diseases have a devastating and
lifelong impact on workers' mental health and their families.

• Insufficient mental health support: Workers' compensation schemes often fail to provide
tailored, meaningful mental health treatment. Long wait times and limited access to
appropriate care, especially in regional areas, exacerbate workers' trauma and mental
health issues.

Flexible compensation options
To better support workers who sustain life-changing injuries or illnesses and are unable to return to work, the Comcare scheme should offer greater flexibility in compensation options.
Specifically, injured workers should have the choice to either remain on the long-tail scheme or opt for a statutory lump-sum or common law payment (discussed further in question 45). This flexibility would allow workers to avoid being tethered to a scheme that otherwise prevents recovery and return to work in alternative employment. Providing this choice empowers workers to manage their financial futures more effectively and with greater autonomy.

12. What changes to the Comcare scheme would better support workers with psychological injuries and illnesses?
Under Comcare a worker needs to meet a designated impairment threshold for their claim for psychological injury to be accepted, making it more difficult than in most other jurisdictions where there is no threshold. We recommend that the impairment threshold be abolished, in line with Victoria, Queensland, Western Australia, Northern Territory and the Australian Capital
Territory.

The test around reasonable administrative action, outlined in section 5A(1)(c), often leads to disputes and the initial rejection of claims, causing undue stress for workers. We recommend that the administrative action test in s 5A(1)(c) be removed, as discussed in question 39.

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13. What changes to the Comcare scheme would better support families of workers who have suffered serious injury, illness or death?
The ACTU supports Comcare’s adoption of the role of the Family Liaison Officer, to provide a principal point of contact for claims liaison to better support families of workers who have suffered serious injury, illness, or death. In addition, the following changes to the Comcare scheme are recommended:
• In cases of serious injury or illness please refer to the recommendation around the
establishment of a Comcare ‘Complex Claims Unit’ in question 6.
• The statutory lump sum payment for the death of a worker should be no less than ten times
the average annual full-time earnings, with this amount being set twice yearly.
• Provide families with advance payment or financial hardship payments following the death of
their loved one to minimise financial burden, for example, through a no-fault insurance/crisis
payment within the first week following the workplace death.
• The definition of a dependent should be broadly and inclusively defined as a person who, at
the time of the worker's death, was wholly, mainly, or partly dependent on the worker's
earnings. This definition should be supplemented by a non-exhaustive list of different types of
dependents.
• If a worker is receiving weekly payments and later dies because of the injury, these weekly
payments should not be deducted from the lump sum death payment.
• If a worker had received a permanent impairment payment and later dies because of the
injury, this payment should not be deducted from the lump sum death payment.
• Any earnings derived by a spouse of a deceased worker should not be considered when
determining whether the spouse qualifies as a dependent.
• In cases where there are no dependents, the lump sum payment should be paid into the
worker's estate.
• The total amount of weekly payments for dependents should be equivalent to the deceased
worker's pre-injury earnings.
• All reasonable funeral expenses should be covered, subject to an upper limit that may be
determined.
• All reasonable expenses for counselling services should be covered, subject to an upper limit
that may be determined.

14. Do you have any suggestions for improving and building the competencies of claims managers?
To enhance the competencies of claims managers, the following measures are recommended:
• Claims manager background: Ideally claims managers would have allied health tertiary
qualifications as an Occupational Therapist, Physiotherapist, Exercise Physiologist (or
similar).

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• Claims managers should establish appropriate standards for educating new staff dealing
with claim lodgement and educate case managers in the administration of screening tools.
Consider formalising the training of staff to equip them with the skills required.12 For
example, training in workers' compensation law and practice was recommended for case
managers in the review of the NT scheme.13
• Comprehensive training programs. Provide claims managers with extensive training programs
to enhance their skills and knowledge, particularly in managing psychological claims and
complex cases. Continuous education and professional development should be mandatory to
keep claims managers updated on best practices and legislative changes.
• Performance monitoring and feedback. Establish robust performance monitoring and
feedback mechanisms to ensure claims managers deliver high-quality and empathetic
service to injured workers. Regular assessments and constructive feedback will help
maintain and improve service standards.
• Accessible complaint mechanisms. Ensure that injured workers have access to a dedicated
section within Comcare where they can lodge complaints about claims managers. This will
help address any issues promptly and improve overall service quality.
• Resourcing standards. In consultation with unions, Comcare should establish clear
resourcing standards. This will ensure that claims managers have the necessary resources
and support to handle their caseloads effectively and provide the best possible service to
injured workers.

Experience and outcomes of specific groups

15. What is the claim experience for women, First Nations workers, older workers or other diverse worker groups?
The claim experiences for women, First Nations workers, older workers, and other diverse groups can vary significantly and often highlight systemic issues within the compensation framework. For example:

• Lack of services in regional and remote locations. There are significant barriers to accessing
treatment in these areas. Ensuring accessible and equitable health services is crucial for
communities with specific needs, including those in remote and regional Australia, Aboriginal

12 McDougall, R, “The Independent Review of SafeWork NSW: Final Report by the Hon Robert McDougall KC,
Independent Reviewer,” 2023. [Online]. Available: https://www.safework.nsw.gov.au/about-us/mcdougall-review
13 Roussos Legal Advisory and Cross Innovate Consulting, “Review of (NT) Workers Rehabilitation and Compensation

Act,” 2014. [Online]. Available: https://worksafe.nt.gov.au/forms-and-resources/reports/final-report-2014-review-of-
the-nt-workers-compensation-scheme

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and Torres Strait Islander peoples, people from culturally and linguistically diverse (CALD)
backgrounds, and the LGBTIQA+ community. The International Labour Organisation
Convention 187, ratified by Australia in October 2024, requires countries to have
occupational health services in accordance with national laws and practices.

• Language barriers. CALD and First Nations workers often face difficulties navigating the
workers' compensation system due to language barriers.

• Impact of racism. Racism may affect all aspects of life for First Nations workers, including
their interactions with the workers' compensation system. This can lead to bias against these
workers and unfavourable decisions being made. Workers may experience stigma and a
sense of shame when filing a claim.

• Cultural factors: For First Nations workers, cultural norms around not discussing problems
can delay the submission of workers' compensation claims.

• Cultural norms around treatments: Different cultural backgrounds have medical treatments
that may not fall under the definition of medical treatment in the SRC Act. Research has
found that a holistic two-way healthcare model that combines traditional Aboriginal medicine
with Western medical treatments has shown significant benefits,14 and it should be
considered as part of a person-focused compensation system.

We recommend consultation with the National Aboriginal Community Controlled Health
Organisation (NACCHO) to ensure the system provides the best outcomes for First Nations people.

16. What aspects of the Comcare scheme work well for diverse groups?
A workers’ compensation system that is person-focused will work well for diverse groups and benefit all workers.

17. What changes are required to the Comcare scheme to ensure injured workers with diverse backgrounds or needs receive appropriate support?
The current Comcare scheme does not provide entitlement to incapacity benefits beyond the pension age, which unfairly disadvantages older claimants who are, in increasing numbers, still part of the workforce. Workers who have contributed to the workforce for many years should not

14University of Sydney, How traditional Aboriginal medicine can help close the health gap, accessible How traditional
Aboriginal medicine can help close the health gap - The University of Sydney

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be penalised for reaching or passing retirement age. Therefore, it is recommended that the retirement age provisions be removed from the legislation.

If the above recommendation is not adopted, an alternative position is proposed: for individuals who are injured within five years of becoming eligible for the age pension, payments should continue for 260 weeks thereafter.

To support this recommendation, it is useful to refer to best practices from other jurisdictions:

• Queensland: Does not include retirement age provisions and has no age cut-off for access to
benefits.
• Western Australia: Removed age restrictions in 2011, ensuring no retirement provisions.

These changes would ensure that injured workers with diverse backgrounds or needs receive appropriate support, regardless of their age.

Scheme coverage

18. What are the risks and issues that arise from current coverage of the Comcare scheme?
The diverse range of work undertaken by licensees under the Comcare scheme presents challenges for the regulator. The inclusion of a diverse range of industries, such as healthcare, construction, mining and transport may dilute the focus and effectiveness of the workers’ compensation scheme.

It is crucial that the license should only apply to the applicant in the industries that are proposed.
This targeted approach ensures that the regulatory framework remains robust and tailored to the specific risks and needs of each industry.

Moreover, diverting workers from state and territory schemes to the Comcare scheme has significant repercussions for local schemes. Reduced premium revenue strains their resources, impacting their ability to effectively oversee and enforce workplace safety standards as well as jeopardising the financial viability of jurisdictional workers’ compensation schemes.

19. Is it still appropriate 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 view that the Comcare scheme should be restricted and should be predominantly for
Australian Government entities. We provide recommendations around the criteria that should apply for corporations to join the Comcare scheme in question 20.

If the Comcare scheme is the pathway to a national scheme for private multi-state employers, we have several concerns:

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• Impact on state and territory jurisdictions. Diverting workers from state and territory workers’
compensation schemes to the Comcare scheme will have significant repercussions for these
schemes. One major concern is that if large national corporations are able to simply exit state
schemes there will be a significant reduction in premium revenue, which is essential for
funding their regulatory functions, and reduce the broad base of those schemes. With fewer
workers covered under state and territory schemes, these regulators would face financial
constraints, potentially impacting their ability to effectively oversee and enforce compliance.
• 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.
• Administrative complexity. Managing claims, benefits, and compliance for a more extensive
and diverse group of licensees will increase administrative complexity. This might lead to
delays in processing claims and providing timely support to injured workers.

20. What criteria should apply for corporations to join the Comcare scheme?
It is our position that this scheme should predominantly serve Australian 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 authorities.

If this recommendation is not accepted, then we recommend the following criteria for private national employers:

2. The scheme should be for the Australian Public Service. For private national employers, the
following tests should apply:
a. Have operations in all states and territories,
b. Exclusively or predominantly compete with the Commonwealth,
c. Subject to tight requirements around consultation with workers and unions, and
d. Have reached agreement with unions and the majority of workers on entry to the
scheme.

Additionally, private multi-state employers would be premium payers, with no opportunity
to self-insure.

The requirement for consultation with workers and unions and reaching agreement from unions and the majority of workers is crucial because there are numerous instances where unions have raised concerns that employers use this as a tick-the-box exercise, leading to concern that the consultation is not genuine.

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This is illustrated when considering the entry of Ramsay Healthcare, as discussed further in the submission by the Australian Nursing and Midwifery Federation (ANMF). In this instance, the
ANMF maintained that Ramsay Healthcare did not commit to sufficient consultation with staff covered by their self-insurance application. Instead, staff were largely required to access information about the application in their own time. Face-to-face meetings were held at only six of the 70 health facilities that Ramsay Healthcare wanted to cover with their application. Staff at the other facilities had to rely on attending these sessions via video conferencing, if possible, or watching the session later. They considered that this was insufficient to secure employees’ responses and give their views proper attention. Multiple consultation sessions should have been conducted, with the size reflective of the number of employees in each state.

Employers often portray entry into the Comcare scheme as a benefit to employees. If this is genuinely the case, there should be no hesitation in seeking agreement from unions prior to entry to the scheme. Genuine consultation and agreement would only reinforce the purported benefits and ensure that employees’ interests are adequately represented and protected.

WHS Act coverage – discussion questions

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 is necessary and 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 similar to the Model WHS framework, providing comparable protections and obligations.

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 view that non-Commonwealth licensees should be regulated under the relevant state and territory WHS jurisdictions. This will ensure that state and territory regulators, who are more familiar with local industry-specific hazards and practices, oversee these licensees and can mitigate this risk and provide effective and responsive regulation.

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The diverse range of work undertaken by licensees, which in many cases is high-risk, presents challenges for the regulator. This diversity spans various industries, each with its unique hazards and safety requirements, including healthcare, construction, mining, and transport. As a result, the regulator must stay informed and develop and maintain capacity for 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.

For example, challenges may arise when private employers, such as John Holland, expand or shift their business operations into different industries, like expanding from construction to aviation or even mining operations. Such transitions require the regulator to adapt and address new safety concerns, further complicating the regulatory landscape.

Governance arrangements - discussion questions

23. Does the SRC Act suitably define the roles and responsibilities of:

• Comcare?

• SRCC?
While the Act defines the roles and responsibilities of Comcare and the SRCC clearly, it does not provide appropriate power and oversight. The SRCC should hold enforcement powers to ensure the fulfilment of obligations under the current legislation.

24. 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?
Currently, there is no tripartite oversight for Comcare premium payers, which is a significant gap in the governance framework. The SRCC only provides oversight for licensees, however, the SRCC should hold powers to enable the fulfilment of obligations and underpinning objectives.

The governance framework for Comcare should include a robust structure to ensure effective oversight and guidance. The following recommendations outline components to be considered.

1. Extend the role of the SRCC or establish a Commission or Governing Board

This body shall have the authority, and the necessary tools, to oversee all aspects of the Comcare scheme, ensuring compliance and effective management in relation to claims administration and workplace health and safety and govern both premium payers and licensees.

There shall be tripartite representation which should include employers’ representatives, workers’ representatives, and the government. The remaining board members should possess a

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range of expertise, including lawyers, actuaries, Safe Work Australia and representatives for the
Minister.

2. Consider the establishment of a tripartite Ministerial Advisory Council. The principal function
of this council would be to provide advice and carry out any requests made by the
responsible Minister. Additional functions should include:

• Monitoring and reviewing the effectiveness of the Commonwealth Safety Rehabilitation
and Compensation and WHS legislation.

• Evaluating the performance of the regulators of these laws and the Safety, Rehabilitation
and Compensation Commission (SRCC) against their respective functions and the
legislation’s objectives.

• Develop specific Codes of Practice on rehabilitation and return to work, to support the
enforcement of the Act.

25. What changes are required to ensure the SRCC has the powers and responsibilities to effectively regulate self-insurance licensees and the public sector?
• The SRC Act does not authorise the SRCC to regulate licensees and does not provide
enforcement powers or for the imposing of sanctions. We make the following
recommendations to ensure the SRCC has the necessary tools to fulfil its functions:For
Comcare licensees, if they are to remain in the scheme, the SRCC be given sufficient powers
of enforcement for use in situations where license conditions, or other requirements and
obligations, are not being complied with.
• That maximum licence terms be brought into line with other jurisdictions, which is an initial
period of three (3) years in New South Wales, Victoria, South Australia, Tasmania and the
Northern Territory.
• That the licensing policy of the SRCC enables in practice, the revocation of the licenses of
non-conforming licensees.
• That the licensing policy (and other relevant policies) of the SRCC enables in practice, the
inclusion of special conditions to a license of a licensee.
• To ensure that licensees comply with their legal and license obligations, the SRCC shall
implement a licensing policy which requires a comprehensive audit:
o Before the granting of an initial license and the extensions of a license.
o At least once during the life of each licensing period; and
o At any time required by the SRCC.
• That the licensing policy of the SRCC requires licensees to report the details of any breach of
a license condition and that such breaches trigger an obligation on the licensee to show
cause why the license should not be terminated.

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• Broaden the scope of the powers and functions of the SRCC to enable itself to own its
motion, and to do any of the following:
o Provide advice to the Minister on proposed legislative instruments, prosecution
guidelines and any WHS and/or workers’ compensation-related matter.
o Commission research.
o Develop and approve Codes of Practice.
o Review any aspect of the Comcare scheme.
o Make submissions to Parliamentary inquiries.
• Provide that the deputy chairs be drawn from each of the social partner representatives.
• That the policies of the SRCC be reviewed at least every two years.
• Reform the SRC Act so it can effectively discharge functions as a tripartite consultative forum
under the WHS Act.
• A function of the SRCC shall be to monitor patterns and trends in Comcare prosecutions.
• A function of the SRCC shall be to monitor the collection, use and disclosure by Comcare of
data on investigations.

26. Does the existing framework provide appropriate oversight and monitoring, compliance and reporting arrangements for:

• Comcare?

• Self-insured licensees?

• Delegated claims management arrangements ?
We believe it does not, for the reasons outlined above in questions 23 and 24.
We oppose delegated claims management in all forms. Licensees enter the scheme because they wish to self-insure. It is inconsistent with that principle to then permit them to contract out this function to a claims manager.

This approach mirrors the flawed scheme agent models that have plagued both the Victorian and
New South Wales schemes. If allowed to continue this model could eventually overshadow the central claims management model of Comcare. Experience shows that the pursuit of profit by scheme agents adds costs, undermines investment in claims managers, and leads to poor outcomes for workers. Schemes often incentivise poor behaviours, as highlighted in the Victorian

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Ombudsman report.15 In NSW, under this scheme, the average employment turnover of claims managers is just 8 months, leading to a deficit of experienced claims managers and a perception of workers' compensation as a ‘claims managers' graveyard.’

In situations where claims managers are used by licensees (or delegated), mechanisms should be implemented to increase transparency. For example, as recommended in Victoria16 17 this should include:
• Publishing a plain English explanation on its website of the financial incentives and penalties
it offers its agents. This should detail:
o The purpose of each incentive/penalty.
o The incentives paid or penalties imposed each year, along with the reasons for these
actions.

Rehabilitation authorities?
The ACTU endorses recommendation 6.5 of the Hanks Report,18 specifically that the SRC Act be amended to remove the role of the rehabilitation authority and replace it with the concept of the liable employer, which will always have a right, and the responsibility, to arrange rehabilitation.
We support a role for co-ordinators within employers who have the authority to support injured workers.

Workplace rehabilitation and other service providers?
The current framework's marketisation and under-regulation of vocational rehabilitation providers often result in subpar services, with some providers focusing on profit rather than quality care. This can lead to generic training programs that do not meet the specific needs of injured workers.

To address this, it is essential to implement thoughtful, long-term, and tailored vocational rehabilitation programs. These programs should be designed with input from the workers themselves, and their collective representatives, such as unions. Additionally, having worker

15 Victorian Ombudsman. (2021). WorkSafe 3: Investigation into Victorian self-insurers’ claims management and
WorkSafe oversight. Victorian Ombudsman. Retrieved from https://www.ombudsman.vic.gov.au/our-
impact/investigation-reports/worksafe-3-investigation-into-victorian-self-insurers-claims-management-and-worksafe-
oversight/
16 P. Rozen, “Improving the experience of injured workers: A review of WorkSafe Victoria’s management of complex

workers’ compensation claims,” 2021. [Online]. Available: https://www.vic.gov.au/victorian-workers-compensation-
system-independent-review
17 Government of Victoria, “Independent Review into Complex Workers’ Compensation Claims Management: Victorian

Government Response,” Melbourne, Victoria, 2022. [Online]. Available: https://www.vic.gov.au/victorian-workers-
compensation-system-independent-review
18 Australian Government. (2013). Safety, Rehabilitation and Compensation Act review: Report. Peter Hanks QC.

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representation on the boards of management for rehabilitation providers can ensure that the services are aligned with the actual needs and best interests of the injured workers.

Workers must be able to choose their rehabilitation provider in line with a worker-centric approach to the scheme, as discussed in question 49.

27. 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?
Please refer to the submission of the CPSU, which considers in detail the recommendations which are still relevant. The AMWU has attached their response to the Hanks review at the time, as contained within Appendix 1 of their submission.

Financial management and viability

28. What changes are required to the Comcare scheme to ensure future scheme financial sustainability?
The Comcare scheme is a ‘user pays’ scheme and as such premium setting shall be done annually and must be set high enough to cover all workers’ compensation scheme costs for a jurisdiction. Premiums must recover the costs of the system, as well as discourage unsafe work practices.

Workers’ compensation premiums shall be calculated through a combination of:
• claims experience rating cost
• a percentage of wages or corresponding payments equivalent to meet the scheme costs
arising from injuries occurring within the jurisdiction
• the cost of the Regulator and associated costs (e.g. Workers’ Compensation
Commission/Tribunal, Health & Safety and scheme Regulators), adjusted per industry
based on risk profiling, and
• a demerit system (based on The Canadian system of demerits (additional levies) which
would be made on employers who score lower on health and safety prevention audits,
conducted by certified third parties in consultation with the unions and employers.

29. Is the scheme’s approach to prudential management adequate for Comcare’s compensation liabilities? If not, what alternatives do you suggest?
We are not able to fully assess the adequacy of the scheme’s approach to prudential management due to the current lack of transparency. The ‘behind closed doors’ approach to

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prudential management means that unions are not privy to the decision-making process, nor are we involved in reviewing actuarial reports or contributing to the advice provided in these reports.

This lack of transparency poses a significant risk to the scheme. Without open access to critical information and the ability to participate in the decision-making process, it is challenging to ensure that prudential management practices are robust and effective.

To address these issues, we recommend that prudential management under a future scheme be overseen by the SRCC. By involving all stakeholders, we can enhance the oversight and accountability of prudential management, ultimately leading to better outcomes for Comcare’s compensation liabilities.

30. Should Comcare be able to access, invest and use money from premiums to fund proactive activities?
Yes. Investing in proactive measures such as workplace safety programs and early intervention strategies can help prevent injuries and illnesses before they occur, reducing the overall number of claims.

31. Are changes required to the licence fee setting provisions under the SRC Act to allow for effective and efficient cost recovery?
Licence fees should cover all costs associated with participation in the scheme, this ensures a fully funded scheme.

Social partner involvement and tripartism

32. Are the requirements under the SRC Act for membership of the SRCC appropriate?
We believe the membership of the SRCC is appropriate. It is critical that the SRCC be maintained as a tripartite body with appropriate functions, powers and regulatory tools.

33. 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?
The importance of tripartite consultation is underscored by the ILO obligations set out in ILO
Convention 187, which mandates meaningful tripartite consultation and governance of workers' compensation. Currently, the WHS Act (Cth) and SRC Act lack a dedicated tripartite body with sufficient functions, powers and regulatory tools. In contrast, other jurisdictions have established such bodies, for example:

• Queensland has the WorkCover Board with representation from unions, employers, and
experts.

• Western Australia has the Health and Safety Commission.

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• Victoria has the Occupational Health and Safety Advisory Committee (OSHAC).

Comcare holds a number of engagement sessions with union leaders and union regional sessions in each state and territory annually. In these forums, Comcare provides an update on their regulatory priorities and engagement events, guidance materials and other work priorities.
These forums provide an opportunity for the unions to engage with Comcare and discuss WHS matters affecting their members.

While we value the people and the opportunity provided these forums, they are not a substitute for proper tripartism. Therefore, it is essential to establish a tripartite arrangement for
Commonwealth WHS and workers' compensation, particularly for APS/government agencies and any licensees covered by the Commonwealth WHS (which should ideally be minimal and managed by the states).

We emphasise the importance of tripartism and genuine consultation. All WHS, compensation, and rehabilitation laws and regulations should be developed, reviewed, and maintained in a tripartite manner. Meaningful tripartite consultation must be a central part of the scheme.

To achieve this, the following additional arrangements are required under the SRC Act:

• Provide the SRCC with the regulatory leavers and resources to fulfil its regulatory role in
relation to Comcare and other relevant authorities in relation to their workers’ compensation
and WHS functions.

• 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 SRCC should provide a secretariat to the statutory tripartite
consultative body and be accountable for any of its requests.

34. Do you have suggestions for improvements to facilitate tripartism within the Comcare scheme? If so, what are they?
Please refer to the answer above.

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Scheme entitlement – discussion questions

35. Does the definition of ‘employee’ in the SRC Act reflect contemporary working arrangements?
Are the deeming provisions adequate?
We note that most jurisdictions use the term ‘worker’ in workers’ compensation legislation, rather than ‘employee.’ The term ‘worker’ better reflects modern work arrangements, including the increasing prevalence of non-traditional employment relationships. It is crucial that no worker slips through the cracks and is not covered by the workers’ compensation scheme.

We recommend the adoption of a definition of worker, in line with the definition of employment provided by Professor Andrew Steward in his submission on Independent Contracting and Labour
Hire.19 This definition of employment can be used to define a worker.

The following standard definition of employment 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:
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;

19 Professor 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?url=ewrwp/in
dependentcontracting/subs/sub69.pdf

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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.

36. 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?
A key consideration around determining injuries and disease is the decision time, which may be a barrier to returning to work. Comcare allows a longer time frame for decisions about disease claims by self-insurers than in other jurisdictions. This means that injured workers can be left waiting unnecessarily long periods for an appropriate resolution to their claim. In cases where a claim decision is disputed, or requires an independent umpire, claimants cannot recover the cost of legal assistance before lodging an appeal to the Administrative Review Tribunal (ART), which replaced the Administrative Appeals Tribunal. This often leaves a claimant to battle alone against the licensee’s well-resourced legal team. Or worse, the claimant loses their rights as time limits quickly pass.

Please refer to the recommendations outlined in question 10, under the heading review of statutory timeframes for decision-making under the SRC Act. Provisional liability would also alleviate time pressures associated with determinations.

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We believe that chronic diseases are not sufficiently dealt with under the current legislative framework, refer to comments under question 11.

37. 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?
Currently, the SRC Act does not provide coverage for injuries sustained while travelling to or from work. To address this gap, it is essential that journey claims and recess claims be covered by the scheme. This would ensure that employees are protected not only while performing their work duties but also during their commute and breaks, reflecting a more comprehensive understanding of modern work environments and the realities of employees' daily routines.

38. Is the current threshold for liability for diseases (significant contribution) appropriate?
Strokes or heart attacks should be treated in the same way as other injuries, the test being arising out of, or in the course of the employee’s employment.

39. Are the current exclusions under the SRC Act appropriate?
The test around reasonable administrative action, outlined in section 5A(1)(c), often leads to disputes and the initial rejection of claims, causing undue stress for workers.

The administrative action test results in physical injuries being treated differently from mental injuries, in a way that is discriminatory and reinforces stigma. That is, the ‘no fault’ system which applies to physical injuries is modified by this exemption for mental injuries. We see this provision enacted by decision-makers in rejecting workers' claims wherever there is even a hint of administrative action. There is rarely any consideration of whether the action was reasonable, or whether it was undertaken in an appropriate manner.

Further, requiring workers who have submitted a claim for a psychological injury, who are at their most vulnerable and are unwell, to go through an investigation and be subjected to IMEs to determine whether their claim is genuine is damaging and often injurious. The differential treatment with these processes between physical and psychological injures is marked and requires review.

We therefore recommend that the administrative action test in s 5A(1)(c) be removed. If this recommendation is not accepted, this exclusion must be more clearly defined within the legislation. Specifically, the current non-exhaustive list should be replaced with an exhaustive one. This change would provide clearer guidelines and reduce ambiguity, ensuring fairer and more consistent application of the law, ultimately benefiting both workers and employers by minimising disputes.

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40. 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?
Comcare should strive to be the best practice and leading workers’ compensation scheme in the country. To achieve this, entitlements that are currently unfavourable to injured workers under
Comcare should be elevated to match those of the most favourable jurisdictions. As such we make the following recommendations.

Weekly payments
In accordance with the ‘no more but no less’ principle, 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.

When considering an increase in Normal Weekly Earnings (NWE), consideration should be given to the likelihood of the claimant’s advancement/promotion or increases in wages set out in agreements and this should be reflected in the weekly payment amount.

Step-down provisions
Step-downs have been promoted as an incentive for RTW. However, a review of seven Australian
Workers' Compensation schemes concluded that overall, they were generally ineffective. The results suggest that some workers’ compensation recipients anticipate step-downs and exit the system early to avoid the reduction in income. However, the effects were small and suggest step- downs have marginal practical significance.20 We maintain that exiting the scheme in anticipation of a step down demonstrates a failure of the scheme.

Concern with weekly payments when an employee is on the minimum wage
One particularly impacted group that is employed by several licensees is workers on the minimum wage. These workers face significant financial hardship when step-down rates are applied, reducing their compensation to 75% of their weekly rate. This reduction often results in earnings below the minimum wage, which is unacceptable and disproportionately affects certain groups, such as younger workers and migrant workers.

To address this issue, it is recommended that a floor be established for any compensation payment, ensuring it is not less than the National Minimum Wage. This change would help

20T. J. Lane, L. Sheehan, S. E. Gray, D. Beck, and A. Collie, “Step-downs reduce workers’ compensation payments to
encourage return to work: are they effective?,” Occup Environ Med, vol. 77, no. 7, pp. 470–477, Jul. 2020, doi:
10.1136/oemed-2019-106325.

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protect vulnerable workers from falling into financial distress due to inadequate compensation rates.

Superannuation
Superannuation payments should be made on compensation payments for injured workers, regardless of their employment status. Failing to do so effectively shifts the financial burden of workplace injuries from employers to the workers themselves.

Journey claims
As recommended above in question 37, journey claims should be covered by the scheme and shall cover trips to and from work or whilst in the course of employment.

41. What changes are needed to best determine fair compensation for medical treatment and rehabilitation and household and attendant care services?

Medical and treatment costs
Costs associated with medical and related treatment shall be covered for workers’ compensation purposes with no arbitrary caps or limits.

Where fee schedules for medical and related expenses are proposed this shall be undertaken in consultation with representatives of trade unions.

Fee schedules that result in lower payments to treating practitioners for workers’ compensation patients discourage providers from accepting these patients. This exacerbates existing issues with the availability of medical treatment for injured workers. To address this, fee schedules should be designed to ensure that treating practitioners are adequately compensated, thereby maintaining access to necessary medical services for workers on compensation.

Travel expenses

Compensation shall be payable promptly to an injured worker and any person who acts as their escort for any fares, travelling expenses and related accommodation and living expenses reasonably incurred because of obtaining treatment for medical and related services associated with their injury.

Where an injured worker uses their motor vehicle to obtain treatment for medical and related services associated with their injury they shall be fully, and promptly, reimbursed for the costs incurred.
42. How should the permanent impairment provisions be improved?

It is unfair that a person whose health deteriorates following a compensable injury or illness is denied access to compensation for their health condition because part of the condition is

37
deemed a ‘secondary injury’. If it were not for the initial injury or disease, the secondary injury would not exist.

To enhance the permanent impairment provisions, the following improvements are recommended:

• Abolish eligibility thresholds: The current minimum threshold of 10% for statutory claims for
lump sum compensation for permanent impairment (including pain and suffering) is higher
than other schemes. Injuries are assessed separately, and related or secondary injuries
cannot be combined to reach the threshold. Therefore, eligibility thresholds for lump sum
payments should be abolished. Eligibility should be based on a medical report confirming a
permanent impairment or disablement exists. There should be no artificial barriers
preventing injured workers from making multiple claims for whole-person impairment (WPI) if
they suffer an aggravation or deterioration of an injury.
• Lower WPI threshold (if thresholds are not abolished): If eligibility thresholds for lump sum
payments are not abolished, the WPI threshold should be lowered to 5% for permanent
impairment claims for physical injuries. Separate impairments arising from a single injury
occurrence should be combined to achieve a combined impairment value.
• Comprehensive calculation of WPI: The calculation of WPI for determining lump sum
payments should include pain and suffering, gratuitous care, terminal conditions, and other
relevant factors. The lump sum payment should be a percentage of the death benefit, based
on the equivalent percentage of WPI.
• Increase statutory lump sum payments: Align statutory lump sum payments with the best
provisions, such as those in New South Wales ($713,660) and Victoria ($644,640).
Additionally, statutory payments should be indexed twice a year to keep pace with inflation
and cost of living adjustments.
• Align maximum benefits: The maximum benefit payable for a permanent impairment
payment under sections 24 and 27 of the SRC Act should be equivalent to the lump sum
compensation payable in respect of death under section 17.

43. Does the Comcare scheme sufficiently support injured employees with no potential to return to work?
While we acknowledge the benefits of the long-tail nature of the Comcare scheme, we believe that providing injured workers with more choices, supported by appropriate safeguards, would significantly enhance their prospects of returning to work and improve their quality of life.
Specifically, aligning with the recommendations made under questions 44 and 45, we propose that injured workers with no potential to return to work should have the option to either remain on the long-tail scheme or opt for a lump-sum payment, with appropriate safeguards.

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This flexibility would empower workers to make decisions that best suit their individual circumstances. By offering a lump-sum payment option, workers can avoid being confined to a scheme where they receive benefits in a piecemeal fashion. Instead, they would have the financial autonomy to manage their future more effectively, addressing their needs comprehensively and promptly.

44. Should the scheme allow more options to finalise claims, including lump sum payments? What safeguards should be in place?
To provide workers with more options to finalise claims, it is crucial to implement robust safeguards to protect their interests:
• Workers should receive comprehensive information about their options, including the
long-term financial and medical implications of each choice.
• Support should be provided to access independent legal and financial advice to help
workers make well-informed decisions.
• Lump-sum payments should be calculated to adequately cover loss of income and
compensation for pain and suffering.
• A mechanism should be in place for reviewing and potentially increasing lump-sum
payments if the worker’s condition significantly changes over time.
• The choice to opt for a lump-sum payment should be entirely voluntary for the injured
worker.
• There should be a strict prohibition against coercion, with significant penalties for non-
compliance.

Interaction with other schemes and sources of income

45. Should access to common law continue to be restricted?
Given the longstanding principle that Australian citizens should be able to pursue damages for harm caused by the negligence of others, there is a clear need to reconsider the unnecessary restriction for common law damages in relation to work-related injury within the Comcare scheme.

Restricting access to common law damages for economic loss means injured workers are often
'stuck' on the scheme, or worse, face regular and protracted legal disputes to prove that they continue to suffer from a significant and permanent injury. This results in an ongoing drip-feed of statutory benefits on an indeterminate basis, which may be detrimental to their health.
Additionally, it subjects workers to unnecessary and repetitive independent medical examinations and denies them the capacity to commute the benefit to a lump sum or exit the scheme.

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The near absence of common law claims also fails to incentivise employers to improve their WHS performance. Without the threat of common law claims, there is less accountability for poor WHS systems or practices, putting worker health and safety at risk.

Therefore, it is our position that access to common law should not continue to be restricted. We believe that when workers suffer harm as a result of their employer's negligence, they should be afforded the following options:

1. To stay on the long-tail scheme and continue to receive benefits under it.

2. To pursue a common law claim for economic loss and pain and suffering, which would
finalise a claimant’s statutory entitlement into the future.

3. To pursue a common law claim for pain and suffering only, allowing the claimant to
continue receiving benefits under the long-tail scheme.

Additionally, common law damages should be aligned with other schemes. For example, in
Victoria, the damages are as follows:

• $713,780 for pain and suffering.

• Economic loss capped at $1,639,480.

46. If access to common law continues to be restricted, should there be a greater right to redeem compensation benefits?
Redemptions can play a valuable role in allowing workers to be released from the bureaucracy of the scheme, enabling injured workers to move forward with their lives. We support a greater right to redeem low-cost items, such as hearing aids. However, it is essential to implement safeguards to protect the financial viability of the scheme and prevent it from becoming too front-loaded.

Where redemptions are used, they should be determined on an actuarially fair basis to ensure that injured workers are not disadvantaged. Additionally, workers should be supported to receive financial advice before accepting a redemption to make informed decisions about their compensation.

A scheme that we believe works well in terms of redemptions is the NSW Dust Diseases Scheme, which could serve as a model for consideration. The approval process for redemptions should involve a fair and transparent mechanism, potentially including worker representatives to ensure that the interests of injured workers are adequately protected.

47. Do the provisions in the SRC Act aimed at preventing double-dipping in relation to like-remedies need changing following Comcare v Friend?
The settlement received by Ms. Friend in the case of Comcare v Friend should not be considered double-dipping under the SRC Act. The compensation awarded for sexual harassment and

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discrimination addresses distinct and separate harms from those covered by workers' compensation. Workers' compensation is designed to cover injuries sustained out of or in the course of employment, whereas the settlement in question compensates for the severe emotional and psychological distress caused by unlawful discrimination and harassment. These are fundamentally different categories of harm and conflating them undermines the purpose of both types of compensation.

Allowing such settlements ensures that victims of workplace discrimination and harassment receive full redress for their suffering, without unjustly penalising them by reclaiming workers' compensation payments. Therefore, the provisions in the SRC Act should be interpreted to allow these distinct remedies to coexist without being considered double-dipping.

48. 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?
No, there should not be any adjustments to workers’ compensation payments based on compensation or support from other sources. Injuries caused by work should be fully covered by the employer’s workers’ compensation scheme. Any reduction in statutory compensation payments would effectively externalise the costs to other parties, which is unfair to the injured worker. The responsibility for compensating work-related injuries should remain with the employer, ensuring that workers receive the full support they are entitled to without deductions for other statutory entitlements or income sources.

Rehabilitation, return to work and early intervention

49. Does the Comcare scheme provide suitable criteria and arrangements to support: a. Early intervention?
Early intervention in the context of work-related injuries should be limited to interventions that are supported by medical advice, following a worker advising of a likely compensable injury.
Please refer to question 2 in relation to our concerns and proposed definition of early intervention.

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Early intervention has several benefits, including reducing the frequency, cost and severity of claims, and preventing the deterioration into secondary mental injuries.21 22 23 According to the
Australia Rehabilitation Providers Association,24 every $1 invested in early intervention yields a
$7 return on investment.

To ensure early treatment and management of work-related injuries we recommend the introduction of provisional liability to ensure effective early intervention, as discussed in question
50. b. Return to work?
The SRC Act needs to be strengthened in relation to return to work. RTW should be elevated as a central tenant of workers’ compensation by:
• Placing a duty on the employer to plan for RTW and consult with the injured worker, their
representative and the treating practitioner throughout the entire RTW process.
Provide that an RTW plan for an injured worker is to be developed within a reasonable timeframe
(such as 10 business days of a claim for compensation being accepted),25 in consultation with the worker and their representative. This would be amended from time to time thereafter, to take account of changes in circumstances.
• Placing an absolute obligation on employers to provide suitable duties, which are
meaningful to the worker.
• Preventing termination of employment unless the injury management plan specifies that
the return-to-work goal is a different job with a different employer.
• A host employer shall equally assume the obligation to provide suitable duties to a worker
who is injured.

Practical considerations in supporting RTW outcomes
Case conferences provide an important part of the RTW planning process. As such they should be conducted at a minimum of every 26 weeks unless doing so would serve little or no purpose based on the current medical information. Written notice must be provided at least 14 days

21 Safe Work Australia, “Taking Action: A best practice framework for the management of psychological claims in the
Australian workers’ compensation sector,” 2021.
22 WorkSafe Queensland, “2023 review of the operation of the Queensland workers’ compensation scheme,” 2023
23 T. J. Lane, S. Gray, B. Hassani-Mahmooei, and A. Collie, “Effectiveness of employer financial incentives in reducing

time to report worker injury: an interrupted time series study of two Australian workers’ compensation jurisdictions,”
BMC Public Health, vol. 18, no. 1, p. 100, Jan. 2018, doi: 10.1186/s12889-017-4998-9.
24 Australian Rehabilitation Providers Association (ARPA), “The return on investment for workplace rehabilitation,”

2021.
25 Queensland Government. (2023). Review of the operation of the Queensland workers’ compensation scheme:

Final report (Recommendation 20).

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before the case conference. An injured worker has the right to have a representative present during the case conference.
There should be incentives for employers who hire workers with existing workplace injuries or illnesses such as premium discounts and procurement advantages.

Enforcement of RTW obligations
Enforcement and compliance have been identified as playing a strong role in optimising RTW outcomes. For example, research has shown there are major differences between jurisdictions in the proportion of workers with RTW plans largely due to compliance with policies rather than the policies themselves. Therefore, enforcing or encouraging legislative requirements shown to be beneficial to RTW represents a simple and effective intervention.26

Penalties should be imposed for non-compliance with an employer's RTW obligations, such as failing to plan for RTW or failure to consult with the injured worker regarding the RTW plan.
Additionally, the failure to provide suitable duties should be a reviewable decision and subject to penalty units under the SRC Act.

Union's role in the enforcement of RTW obligations
Trade unions must have the power to investigate and enforce non-compliance with workers’ compensation laws, specifically around RTW, together with rights of entry, inspection and other investigative powers.

An official of a registered union with rules of coverage of workers working at the workplace should be permitted to enter the workplace for the purposes of investigating a suspected contravention of the RTW duties, to assist with ensuring compliance with the SRC Act, as they do with respect to WHS duties.

During such an investigation the official shall have the right to inspect any place or document which the official may deem relevant to the suspected contravention, including return to work policies and procedures, location of suitable duties, safe working procedures and risk assessments, return to work plans, workers’ compensation policies and/or certificates of currency and injury registers.

Following the course of such an investigation, should the official conclude there is, has been, or is likely to be in the future, a contravention of the workers’ compensation legislation, the official

26L. Sheehan, T. Lane, S. Gray, D. Beck, and A. Collie, “Return to Work Plans for Injured Australian Workers: Overview
and Association with Return to Work,” 2019, Monash University. doi: 10.26180/5C35458082082.

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shall have the right to issue a notice to the employer compelling the employer to take action to remedy the non-compliance.

The establishment of an RTW inspectorate
There should be a mechanism established for the SRCC to regulate RTW provisions under the
SRC Act via an inspectorate that would be trained in RTW matters. The inspectorate would regulate both APS and any licensees in the scheme. Inspectors should have the power to issue notices such as non-compliance, improvement notices and infringement notices. Specifically, the
RTW inspectorate’s role shall be as follows:
• To promote healthy and safe work.
• Have experience and expertise within the industry they are assigned.
• To issue notices where there has been (or has been and is likely to reoccur) a non-
compliance with the legislation.
• To enquire if there is a union in the workplace and if so, consult with such union.
• Return to Work Inspectors should be empowered to enter a workplace and satisfy
themselves that employers are complying with their obligations around return to work
under the legislation, including the obligation to provide suitable employment and comply
with RTW plans.
• To bring matters before a court for prosecution.
• Any other functions as established in relevant legislation.

Rehabilitation Services
The aim of any rehabilitation service should be to achieve maximum recovery and prepare injured/ill workers, wherever possible, to return to their previous position. In cases where this is not possible, workers must be redeployed to the most suitable position in respect of their aptitude and capacity and provided with vocational and other support to return to employment.
Rehab services must be:
• Implemented properly and without regard to claims manager’s costs.
• Return workers to their fullest capacity in their workplace, community, family and life.
• Actively involve unions and their members in consultation and decision-making.
• Be independent of the employer or insurance company.

The relationship between the healthcare provider and injured worker is a contributing factor in recovery. Workers are more likely to have positive outcomes if they have a sense of autonomy or

44
choice in treating practitioner.27 The injured worker therefore must have the right to choose a rehabilitation provider, as is the case in the majority of jurisdictions, including Victoria, New
South Wales and Queensland.

Suitable duties
Although there is currently an obligation on employers to provide suitable duties for injured workers, this doesn’t always happen. In larger organisations, there are often opportunities to redeploy workers into alternative roles or work areas, but in practice, this does not occur as frequently as it could.

To address this, the Comcare scheme should provide incentives for employers who continue to offer support and meaningful work to injured employees who cannot return to their pre-injury roles. These incentives could encourage employers to explore and implement redeployment options more actively, ensuring that injured workers receive the support they need to remain productive and engaged in the workforce.

In situations where the employer cannot provide suitable duties there should be a mechanism whereby an injured worker may participate in an RTW plan with another licensee/premium payer to enable suitable duties to be provided to the injured worker.

50. 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?
We recommend the introduction of provisional liability, following a worker advising of a likely compensable injury. Employers may offer benefits and payments for injuries or illnesses without a connection to work, but these arrangements are outside the scope of the SRC Act.

Evidence suggests provisional liability benefits workers getting support regardless of claim outcome and may reduce the need for early intervention. Provisional liability also makes claims managers' decision time less of a barrier.28 Extension of provisional liability to all types of injuries

27 O. Anderson, V. McLennan, and C. Randall, “Treatment and provider choice in worker injury rehabilitation: A
systematic literature review,” Journal of Vocational Rehabilitation, vol. 56, no. 1, pp. 43–53, Jan. 2022, doi:
10.3233/JVR-211171.
28 T. J. Lane, S. Gray, B. Hassani-Mahmooei, and A. Collie, “Effectiveness of employer financial incentives in reducing

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has therefore been recommended.29 30 31 Early access to treatment, without financial stress, is a key to recovery. Workers should be able to access provisional liability as follows:

• Workers shall receive payments under the workers’ compensation system until the
claims manager has made a decision regarding liability.
• Provisional payments shall commence within 7 days of the claims manager being
notified.
• Provisional payments shall cover weekly benefits and medical and associated costs.
• There shall be an obligation on the employer to provide suitable duties in line with a
worker’s certificate of capacity.
• There shall be penalties against any claims manager for non-compliance.

If this recommendation is not adopted, we suggest a fall-back option of implementing provisional liability in line with the NSW model.

51. Should the SRC Act provide for greater oversight of rehabilitation authorities and rehabilitation providers?
Comcare should have greater oversight of rehabilitation providers to ensure there is proper compliance with rehabilitation guidelines. Where the guidelines are not complied with, Comcare should be able to apply penalties.32

The RTW inspectorate as discussed in question 49, can ensure compliance of approved rehabilitation providers with outcome and service delivery standards.

Please refer to question 26 for recommendations around rehabilitation authorities.

52. Should the SRC Act provide Comcare with greater regulatory powers in relation to rehabilitation?
We believe the SRCC should be afforded greater regulatory powers in relation to rehabilitation.
We recommend that the SRC Act be amended to provide the SRCC with the power to issue notices and to accept undertakings from employers in relation to contravention of employer rehabilitation obligations, including the duty to provide suitable employment. RTW inspectors should be provided with similar information-gathering powers to those provided to the regulator

29 Safe Work Australia, “Taking Action: A best practice framework for the management of psychological claims in the
Australian workers’ compensation sector,” 2021.
30 Monash Centre for Occupational and Environmental Health (MonCOEH) and Healthy Working Lives Research

Group, “Early Intervention in the Workers’ Compensation Process,” Monash University, 2024.
31 T. J. Lane, S. Gray, B. Hassani-Mahmooei, and A. Collie, “Effectiveness of employer financial incentives in reducing

time to report worker injury: an interrupted time series study of two Australian workers’ compensation jurisdictions,”
BMC Public Health, vol. 18, no. 1, p. 100, Jan. 2018, doi: 10.1186/s12889-017-4998-9.
32 Australian Government. (2013). Safety, Rehabilitation and Compensation Act review: Report (p. 80). Peter Hanks

QC.

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under s 155 of the WHS Act. To be able to perform these functions the SRCC must be adequately resourced. Please refer to the recommendations made under question 49(b).

Resolving dispute in the scheme

53. What is your experience of dispute resolution in the scheme? What improvements would you suggest arising from that experience?
Feedback from affiliates indicates that the current dispute resolution arrangements are overly legalistic, time-consuming, and lack clarity. Every decision to pay a benefit, whether for physiotherapy or a return-to-work plan, can be assessed and rejected. This means that a worker might have to fight not only to have their initial claim accepted but also to have each subsequent expense and incapacity claim approved. In practice, this offers little financial certainty for workers, making the system exhausting and stressful for injured individuals.

To improve this, alternative mechanisms should be introduced to resolve disputes early, without the need to escalate to the Administrative Review Tribunal (ART). This could include mechanisms used in other jurisdictions, such as review by an independent review officer and mediation or conciliation processes. These approaches can provide quicker, clearer, and less adversarial resolutions, reducing the burden on injured workers and improving their overall experience with the scheme. There should be no costs imposed on the injured worker for pursuing resolution before pre-litigation. Workers should be supported with reasonable legal costs to enable them to seek advice on their options and assist in resolving their disputes effectively.

54. 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?

We strongly support the legislative provision for pre-litigation dispute resolution processes. Given that 3 out of 5 decisions to reject a workers’ compensation claim are overturned at the ART, there are significant issues with access to timely good decisions. Therefore, it is essential to have a mechanism to adequately resolve claims before reaching the ART.

From a principles perspective, we recommend:

• Timely mediation or conciliation of disputes. There should be the ability to list matters
quickly, for example, urgent issues such as terminal illnesses and weekly benefits in cases of
hardship being listed within 2-4 days. This would occur via mediators appointed by the SRCC.
They would have the authority to issue orders to assist with the resolution of disputes.

• Arbitration orders. There should be a provision for workers to obtain orders through
arbitration, particularly in return-to-work disputes where there is a threat of termination.

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• Pre-litigation dispute resolution. The legislation should include a mandatory dispute
resolution mechanism for injury management disputes (such as return to work) that must be
followed before notifying the Commission/Tribunal. Penalties should apply to employers who
breach this provision.

Implementing these measures would ensure that disputes are resolved more efficiently, reducing the burden on injured workers and improving their access to necessary treatments and support.

55. Should the legislative framework be changed to adopt best practice in dispute resolution from other schemes? If so, please specify.
State schemes offer greater emphasis on pre-litigation resolution, following internal review. For example: conciliation, mediation or arbitration is offered in Victoria, Tasmania, Western Australia,
Northern Territory and the Australian Capital Territory. Regulator or tribunal review is available in
Queensland and South Australia. Some states allow recovery of disbursements incurred in pre- litigation phases.

Under Comcare, external reviews relate only to the specific decision being appealed. Unlike other schemes, there is no capacity for a whole-of-claim review.

We recommend that the Comcare scheme be amended to place greater emphasis on pre- litigation resolution and there should be no costs imposed on the injured worker for these dispute resolution mechanisms.

56. 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 in the case of a dispute related to a medical/clinical question. These panels should be composed of an equal number of specialists nominated by the social partners. Members should serve fixed terms, such as three years, subject to review by an oversight governance body, such as the SRCC. While the panel’s opinion should not be binding, it should provide a well-informed recommendation to the presiding commissioner, who will make the final decision.

57. 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?
If there is a mechanism for dispute resolution at the reconsideration stage the costs associated with the reconsideration should not be borne by the injured worker.

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58. 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?
Nothing further than what is outlined above.

Scheme administration

59. Should the Comcare scheme continue to provide for delegated claims management arrangements?
We oppose delegated claims management in all forms for the reasons outlined in question 26.
Licensees enter the scheme because they wish to self-insure. It is inconsistent with that principle to then permit them to engage a claims manager.

60. What aspects of the delegated claims management arrangements should remain? What changes are needed?
It is our view there are no aspects of delegated claims management that should remain.

61. 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.
There should be mechanisms to monitor decision-making to ensure administrators are not systemically making adverse decisions that are later overturned. Where it is identified that administrators are regularly having their decisions overturned, a scheme of additional penalties to disincentivise the ongoing poor decision-making should be introduced.

62. How can unintended consequences best be avoided?
We believe that the introduction of tripartite structures in the governance framework will enable early identification of issues or unintended consequences, allowing for timely and appropriate solutions. Tripartism is an effective approach to ensure that potential problems are addressed proactively.

Conclusion
The ACTU welcomes the opportunity to contribute feedback to the comprehensive review of the
Safety, Rehabilitation and Compensation Act. It is crucial that this review leads to meaningful changes that enhance the scheme to ensure that injured and ill workers receive timely treatment, rehabilitation, and make a successful return to meaningful, healthy, and safe work.

References
ACTU Congress Policy- Healthy and Safe Work, accessible ACTU-Congress-2024-Healthy-and-
Safe-Work.pdf

49
AMWU Workers’ Compensation Guiding Principles
Safe Work Australia. (2023). Comparison of Workers’ Compensation Arrangements in Australia and New Zealand (29th ed.). Safe Work Australia.

address
ACTU
Level 4 / 365 Queen Street
Melbourne VIC 3000

phone
1300 486 466

web
actu.org.au
australianunions.org.au

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Public consultation - independent review of the Safety, Rehabilitation & Compensation Act 1988