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ATO Response to SRC Act review papers.
Consolidated list of discussion questions and individual responses
Contact: Kristy Stewart
Best practice workers’ compensation – discussion questions
What are the primary objectives of a workers’ compensation scheme? Should those
1
objectives be expressly stated in the Act?
Primary objectives of a worker’s compensation scheme should include;
- Medical and financial support to injured workers
- Rehabilitation support to achieve RTW
- Income support during initial period of absence
- Legal protection for employers with WC the remedy for workplace injury
- Safety incentives to encourage employers to maintain safe working environments
- Support for families impacted by workplace fatalities.
Clear detailing of objectives within the SRC Act further enables;
- Clarity and transparency
- Consistency in application
- Policy guidance / framework to best support regulators to develop and implement
effective worker’s compensation policy.
Similarly, setting out the rights and obligations of claimants and employers could provide
enhance clarity – see Division 2 of the Workplace Injury Rehabilitation and Compensation Act
2013 in which both objectives, and obligations are documented.
What are best practice design principles for a workers’ compensation scheme? For
example, can you provide examples (from other schemes) of best practice approaches
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to early intervention, rehabilitation (including supporting claimants with psychological
injuries), vocational support and return to work?
Best Practice Design Principles
Early Intervention: Prompt action following an injury can significantly improve recovery
outcomes. This includes immediate medical attention and early engagement with rehabilitation
services – currently hindered by the ‘Guide for arranging rehabilitation assessments and
EXTERNAL 1
requiring examinations 2024’ which has introduced a 14 day delay in rehabilitation assessment,
while additional medical information is sought from treating practitioners.
Comprehensive Rehabilitation: Providing holistic rehabilitation services that address both
physical and psychological injuries is crucial. This includes access to mental health support and
tailored rehabilitation plans to facilitate an early return to work. Need for improved collaboration
between rehabilitation case managers and Comcare claims managers to facilitate improved
returned to work rates – evidenced by successes achieved under DCMA model where claims
and case managers are co-located within agency.
Vocational Support: Offering vocational training and support to help injured workers transition
to new roles if they cannot return to their previous job. Further expanding return to work
provisions to prioritise vocational support to assist with extended periods of absence / inability
to return to same role.
Return to Work Programs: Developing structured return-to-work programs that include
modified duties and gradual reintroduction to the workplace as a preference to extended
absence. Requirement to work collaboratively with treating practitioners to ensure aware of
rehabilitation supports available within the workplace, and ensure return to work is in line with
medical advice.
Stakeholder Engagement: Involving all stakeholders, including; employers, claimants,
healthcare providers, and insurers, in the design and implementation of the scheme.
Transparency and Fairness: Ensuring that the scheme is transparent and fair in its processes
and decision-making and includes appropriate methods for review.
Describe the areas of the scheme needing reform to help workers understand and
3 access their entitlements. What changes are needed to enable workers better to
navigate the legislative framework?
Complexity of the Legislative Framework:
Simplification: The current legislative framework can be complex and difficult for workers to
understand. Simplifying the language and structure of the legislation can make it more
accessible.
Clear Guidelines: Providing clear, concise guidelines and summaries of key provisions can help
workers quickly grasp their rights and obligations, and provider a better understanding of the
current legislation.
Communication and Information Dissemination:
Enhanced Communication: Improving the way information is communicated to workers,
including using plain language and multiple formats can enhance understanding and
accessibility.
Educational Programs: Implementing educational programs to inform workers about their
entitlements and how to access them.
EXTERNAL 2
Workforce challenges – discussion question
What changes are required to address workforce challenges (current and emerging: see
4 ‘Issues to be considered’ above) to maintain an effective and sustainable Comcare
scheme?
One of the biggest challenges facing the scheme currently is an increase in psychological
claims. This has been accompanied by increased absence from the workplace. The current SRC
Act allows for 45 weeks of incapacity with little consequence. Reducing the time period full
incapacity is available for, may encourage an earlier return to work.
Similarly, should incapacity payments be conditional on a claimant actively participating in
treatment may also ensure increased recovery and lead to more effective return to work rates.
An alternative approach to ensure that the scheme remains financially viable, is to give
consideration to implementation of a step-down approach to compensation payments,
reducing benefits payable after a period of time. Should this be introduced in regard to both
incapacity and medical expenses, there is an increased incentive to both return to work, and to
pursue goal specific treatment, ensuring recovery is achieved within the supported timeframe.
Implementation of a step-down approach, highlights the importance of effective return to work,
and beneficial treatment aimed to transition an employee to self-management rather than
encouraging reliance on the scheme.
What changes are required to the Comcare scheme to better accommodate remote
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work and working outside ‘traditional’ work hours?
With a shift in the nature of work being undertaken across the scheme, and a new flexibility in
how we work, the traditional workplace, on which the SRC Act was constructed, looks very
different. Revision of definitions regarding place of work, including traveling between places of
work for the purpose of section 6(1)(d) is required.
With home now considered a workplace, there is a need to define the boundary of the place of
work – employee’s need access to a secure location to work, a bathroom and kitchen facilities,
along with safe access and egress to these areas. Outside of these areas, is the remainder of
the home considered part of the workplace and subsequently, is an injury occurring in these
areas considered compensable?
Example: study, kitchen and bathroom are located in the downstairs of a home – claimant is
putting away washing upstairs and falls on the staircase injuring his ankle. There is no work-
related reason for the claimant to be upstairs, task undertaken was not in the course of
employment – compensation should be excluded as not occurring during an ordinary recess,
outside the boundary of the workplace, and employee has broken then connection with
employment, performing a task not required in line with their role.
Where a claimant is travelling between work and home, with the plan to resume working from
home, this can be considered compensable rather than being captured with the section 6(1C)
journey provisions, designed to exclude this portion of travel. Given the nature of the journey
EXTERNAL 3
remains in line with section 6(1C), with the claimant returning home, rather than travelling to an
alternate workplace, compensation should be excluded.
Coverage for traffic accidents is available through state based schemes, with claimants still
entitled to compensation, I.e. through application of Transport Accident Act 1986 , in Victoria,
ensuring personal coverage, however further clarifying the scope of these provisions will
reduce the financial burden associated with claims under the SRC Act.
Working outside of traditional hours will also require consideration, in determining when the
workday starts and stops for the purpose of compensation. Is an injury, noticed at 10pm after
recommencing work, post gym session considered compensable if the claimant was checking
emails at the time they first noticed the onset of pain?
What is considered an ordinary recess in this new environment? In the 2011 amendment,
compensation was reinstated for injuries occurring during
• lunch breaks in normal working hours, and
• meal breaks during overtime and shift work periods
Where scheduled, some injuries occurring during a morning coffee break are also considered to
have occurred in the course of employment where the workplace acknowledged the regular
nature of the break, either by building it into a work schedule, or in supporting an employee
leaving the office for a short period during paid time.
Further clarification regarding these provisions is required, as if a scheduled break is
supported, and occurs at 3pm every day to enable for example during school pick up, are
injuries occurring during this time considered to have occurred during an ordinary recess?
Reverting legislation back to pre 2011, and excluding injuries occurring on unpaid time, may
provide better clarity, and financial viability to the scheme.
What changes are required to the Comcare scheme to better manage complex
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psychological claims?
Observation: claimants not actively seeking treatment experience delays in both recovery and
return to work. Consideration to conditional incapacity – accessible only where active
participation in treatment is demonstrated.
Regular assessment, in line with the ‘Guide for arranging rehabilitation assessments and
requiring examinations 2024’, to monitor for change in workplace contribution from significant
to material in long term compensation matters, reducing long term reliance on the scheme for
support.
Focus on early rehabilitation to support claimants to return to / or recover in the workplace,
maximising the chance of recovery. Currently, the ‘Guide for arranging rehabilitation
assessments and requiring examinations 2024’ imposes delay on workplaces seeking early
assessment and rehabilitation support. I believe this is an unintended consequence of the
guide, and will further protract recovery and provision of appropriate support.
Reconsidering the definition of an assessment to distinguish between rehabilitation provider
and IME assessor, will enable earlier access to assessment by an RP, and case conferencing
between RP and GP to support transition back to the workplace.
EXTERNAL 4
Consideration to revision of 36(1) to exclude rehabilitation support noting this differs from
assessment by an independent psychiatrist, true to the provisions of 36(3).
7 What changes are required to the Comcare scheme to respond to climate change risks?
Climate change risk is not of high impact to the ATO. However, more broadly, there are four
main impacts of climate transition to workers’ compensation schemes that may impact across
the scheme:
- Different work (for example, fewer coal workers and more people employed to install
and maintain renewable energy facilities) may change the profile of workers’
compensation claims.
o Sunsetting industries, may lead to:
Challenges with return to work for injured claimants
A possible spike in claims from workers who are close to retirement age
- In some cases where a portfolio is concentrated, there may be a risk of being left with
the high-risk workers and/or employers with return-to-work challenges.
- Risk that changes in the mix of occupations will expose cross-subsidies. For example,
the risk that you don’t get enough low-risk claims, or overcharge if there is a big
reduction in high-risk occupations.
- The need to monitor and assess sectoral transition pathways to determine the impact
these may have on premiums and claims generally.
Reduced availability of reinsurance or financing also poses a challenge. Reinsurers or banks
may adopt Environmental, Social, and Governance (ESG) strategies that reduce their appetite
for reinsuring or financing industries that do not support the transition. This is already
happening in Europe with the coal industry where banks have withheld funding in line with
climate pledges to restrict lending to the sector.
Claimant experience – discussion questions
8 What is your claim experience? Positive, negative or neutral?
NA
Explain what aspects of the Comcare scheme work well? For example, early intervention
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initiatives or the claim-making process or rehabilitation and return to work support.
Elements of the current scheme that are working well include;
• Easy online access to forms / submission of documentation including for electronic
submission of claims for time off work.
• Reimbursement linked to provision of appropriate documentation.
• Access to rehabilitation support, with employers held accountable for return-to-work
outcomes.
• Access to ongoing incapacity entitlements above and beyond other schemes.
• Generous scheme – access to medical expenses, travel related costs, incapacity and
other forms of assistance, plus repeat application for permanent impairment.
• Return to work programs are supported and medically guided. New requirements
mandate treating doctor involvement, and provide guidance regarding independent
assessment, ensuring consideration to employee preference.
EXTERNAL 5
• Claimant participation in return to work program development is encouraged, to ensure
suitability and longevity of return to work.
What changes to the Comcare scheme would better support recovery and wellbeing
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and improve return to work outcomes?
As employer, we often see return to work impacted by a claimant’s inability to access treatment
due to an individual’s financial situation. Access to provisional payments may assist with earlier
access to treatment to enable improvement in recovery times, and enhanced return to work
rates. However, will come at a cost to the scheme.
Provisional incapacity payments, however, may deter return to work, encouraging continued
absence.
There is risk with the introduction of any provisional payment, especially to the ongoing
financial viability of the scheme, where a large proportion of claims are later denied. It would
not be in the best interest of a claimant to have to repay these costs, meaning the loss would
need to be absorbed by the scheme.
Consideration to be given to opening provisional payments for treatment only to encourage
early intervention and support the RTW process. Clear timelines would need to be documented
to ensure provisional payments were only accessible until initial liability determination was
complete.
Provisional payments should not continue into the reconsideration / appeals process and any
legislative change would need to clearly articulate this. The potential gain recognised through
improved return to work rates, may assist to balance the increased cost in providing these
payments.
Additionally, access to rehabilitation support under the section 36 process is now hindered by
the introduction of the ‘Guide for arranging rehabilitation assessments and requiring
examinations 2024’ with delay imposed by the requirement to wait 14 days for treating doctor
consultation. I believe this is an unintended consequence of the guide and will further protract
recovery and provision of appropriate support. Having a provider engaged early, to liaise with
the treating doctors will facilitate this transfer of information, in line with the intention of the
guide. Consideration to refining section 36 and/or the guide to ensure differentiation between
assessment for the purpose of rehabilitation support and formal assessment by an independent
medical specialist.
What changes to the Comcare scheme would better support workers with life-changing
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injuries and illnesses?
Access to Long-Term Financial Planning: Providing financial planning services to help injured
workers manage their compensation and plan for the future may better support workers with
catastrophic injuries.
What changes to the Comcare scheme would better support workers with psychological
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injuries and illnesses?
EXTERNAL 6
As above, access to provisional payments (treatment only) may assist workers with
psychological injury or illness, by enabling earlier access to treatment, leading to improvement
in recovery times, and enhanced return to work outcomes.
Amendment of the guide to enable earlier access to rehabilitation provider support, and
discussion regarding return to work may also decrease feelings of abandonment by the
workplace, and encourage earlier resolution.
The benefits of an earlier return to work are significant for both employees and employers.
Key advantages for employees include
Faster Recovery: Returning to work, even in a modified capacity, can help employees recover
more quickly from injuries or illnesses by keeping them active and engaged.
Income Maintenance: An early return allows employees to maintain their income during
recovery, reducing financial stress.
Sense of Purpose: Being back at work helps employees feel productive and connected to their
colleagues, which can boost morale and mental well-being.
Skill Retention: Staying engaged in the workplace helps employees retain their skills and
knowledge, making it easier to transition back to full duties later.
With subsequent benefits also realised for employers including
Reduced claim costs: Early return-to-work programs can lower workers’ compensation costs
and minimize the impact on insurance premiums by keeping claims medical-only rather than
protracted incapacity claims.
Increased Productivity: Having employees back, even in a limited capacity, can help maintain
productivity levels and reduce disruptions in workflow.
Improved Employee Relations: Supporting employees during their recovery fosters goodwill and
loyalty, enhancing overall workplace morale.
Lower Litigation Risks: Engaging employees in a return-to-work program can reduce the
likelihood of disputes or litigation related to workplace injuries.
What changes to the Comcare scheme would better support families of workers who
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have suffered serious injury, illness or death?
Current scheme is generous with access to incapacity, treatment, household/gardening
assistance, home modifications, aids and appliances. Childcare and increased payments for
dependants is also available in significant circumstances.
Review of permanent impairment / non-economic loss caps to ensure these are in line with
cost-of-living pressures may provide improvement in support for those seriously injured.
Whilst CPI increase is applied each year, are base amounts consistent with current economic
pressure faced by claimants?
EXTERNAL 7
Do you have any suggestions for improving and building the competencies of claims
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managers?
Competencies of claims managers could be improved by
• Improved interaction between claims managers, enabling cross skilling and mentoring
across groups.
• Provision of training specific to communication / empathy enabling better interaction
between claimants and claims managers
• Enabling greater communication between rehabilitation case managers and claims
managers to give a greater, more holistic understanding of matters in train.
• State based face-to-face forums / training sessions to encourage discussion and
shared learning.
• Continuation of the rehab and claims managers forum to enable provision of information
/ relevant updates in a timely manner.
• Consideration to the level at which claims managers are employed. Key capabilities
include critical thinking and enhanced communication skills – with some claims
managers operating at the APS3/4 level, capabilities may be reduced.
What is the claim experience for women, First Nations workers, older workers or other
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diverse worker groups?
Current claims management process is accessible for all individuals. Claims portal is WCAG
compliant, audio option available, with information provided in multiple formats and languages
to resonate with workers from different cultural backgrounds.
Interpreter support can be provided at assessment, and the introduction of the ‘Guide for
arranging rehabilitation assessments and requiring examinations 2024’ enables greater
autonomy for individuals and a voice to ensure gender / cultural based considerations are given
when requiring exam.
The ATO experience is quite neutral across diverse worker groups, however rates of injury are
in line with ABS data, with a higher proportion of claims occurring in the 55-59year age group.
Providing tailored support and ensuring a personalised claims management experience, can
assist reduce the stress associated with lodging a claim and provide a more tailored experience
for older workers.
Introducing a feedback mechanism, outside of the complaints process, will enable collection of
data across the scheme to obtain more accurate feedback from diverse user groups and guide
future improvements required.
While not experienced within the ATO cohort, I note that 3 of the 5 highest premium paying
agencies include organisations that employ a significant proportion of First Nations employees
– is this indicative of a more systemic issue?
Historically, First Nations people, face a number of barriers to accessing medical treatment.
While being twice as likely to be hospitalised, they also face longer wait times for surgery when
on public waiting lists. They may be less likely to access mainstream health services and
evidence suggests that when mainstream services are provided for Aboriginal people, they will
have less positive health outcomes. The customization of health services to culture and context
is important to engage First Nations people into healthcare services and facilitate better
outcomes. Similarly, engagement in rehabilitation and return to work, may require a tailored
approach for First Nations people.
EXTERNAL 8
16 What aspects of the Comcare scheme work well for diverse groups?
Current elements of the scheme that work well for diverse groups include:
• System requirements do not differ between individuals – consistent approach is
employed for all claimants regardless of race, gender, age, with support available
through allocation of a single claims manager.
• The ‘Guide for arranging rehabilitation assessments and requiring examinations 2024’
enables greater autonomy for individuals and a voice to ensure gender / cultural based
considerations are given where requiring examination.
• Provider of choice enabled to ensure access to appropriate treatment, enabling
claimants to select treating practitioners appropriate to their needs.
• Governance requirements include mechanisms to continually review the scheme to
ensure best practice.
What changes are required to the Comcare scheme to ensure injured workers with
17
diverse backgrounds or needs receive appropriate support?
Is it the responsibility of the scheme to implement change, or is change needed across the
medical industry? Access for A&TSI claimants is more challenging than for other demographics
CALD – does this impact across work groups and industries? Less prevalent in ATO, but are
CALD claimants at a disadvantage across other sectors?
Scheme coverage – discussion questions
18 What are the risks and issues that arise from current coverage of the Comcare scheme?
The SRC Act currently covers claimants of the Commonwealth, Commonwealth authorities, the
Australian Capital Territory Government and a small number of private corporations, which self-
insure their workers' compensation liabilities under the scheme.
Risks:
- the likely impact on the integrity of the Commonwealth workers’ compensation scheme;
- the likely impact on the operations of the state and territory workers’ compensation
schemes; and
- the scope of the corporations’ operations across jurisdictions
Issues:
- how to remain financially viable in current market
- shifting demographic of claims – older workforce
- changing nature of the workforce – Working from home, traditional hours of work,
traditional place of work all changing.
Is it still appropriate for the Comcare scheme to be the pathway to a national scheme
19 for private multi-state employers? Apart from Australian Government entities and
companies who should have access to the Comcare scheme? Give reasons.
EXTERNAL 9
Inclusion of geographically dispersed companies, operating under multiple state based OHS
laws made sense prior to harmonisation, as did continuation of coverage to companies
previously operating under Commonwealth conditions.
Expanding the coverage under the Comcare scheme to include private companies would
increase earnings generated through premium collection, however, may come at increased
costs, especially if coverage opened to high-risk industries.
Consideration required to financial viability of increased coverage.
20 What criteria should apply for corporations to join the Comcare scheme?
The Comcare scheme currently covers,
- employees of Australian Government agencies and authorities
- employees of national companies licensed by the SRCC (including ACT Government)
- individuals making claims against the Commonwealth for asbestos-related conditions.
Coverage is extended to consider corporations that:
- are, but are about cease to be, a Commonwealth authority; or
- were previously a Commonwealth authority; or
- are carrying on business in competition with a Commonwealth authority or with
another corporation that was previously a Commonwealth authority;
I don’t believe change to the requirements is necessary.
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?
If the transitional period were to end:
- Shift in Jurisdiction: If the transitional period ends, non-Commonwealth licensees may
shift to state or territory WHS laws, which could have different requirements and
standards.
- Administrative Changes: This shift would require administrative adjustments, including
updating policies, procedures, and training programs to align with the new jurisdiction’s
regulations.
- Potential Cost Implications: There may be cost implications associated with
transitioning to a new regulatory framework, including potential investments in new
compliance systems and processes.
Allowing non-Commonwealth licensees to maintain access to the Comcare scheme, allows for
continuation of status-quo but need to consider financial implication – inclusion of higher risk
industries v cost of premiums collected.
22 Should self-insured licensees be regulated by Comcare under Commonwealth WHS
laws, or state and territory WHS laws and regulators? Please give reasons.
EXTERNAL 10
For consistency, if operating under Comcare provisions, regulation should also be enforced
through Commonwealth WHS laws, with Comcare as regulator.
Governance arrangements - discussion questions
Does the SRC Act suitably define the roles and responsibilities of:
23
○ • Comcare?
○ • SRCC?
While the legislation articulates the functions to be carried out by Comcare, addition of a roles
and responsibility statement for both Comcare and SRCC could be included for greater clarity.
What governance framework is needed to provide high-level oversight of Comcare?
24 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?
Unable to provide comment.
What changes are required to ensure the SRCC has the powers and responsibilities to
25
effectively regulate self-insurance licensees and the public sector?
Unable to provide comment.
Does the existing framework provide appropriate oversight and monitoring, compliance
and reporting arrangements for:
• Comcare?
26 • Self-insured licensees?
• Delegated claims management arrangements (see 3.7)?
• Rehabilitation authorities?
• Workplace rehabilitation and other service providers?
Key to a strong governance framework is accountability and transparency. The SRC Act and
Comcare clearly document and maintain required governance measures. Below framework is
appropriate.
Comcare - Corporate plan serves as a roadmap reflecting goals and strategies. Regulator
performance framework in place to ensure consistent, risk based approaches to regulation.
Undertake regular risk assessment to ensure activities are aligned with safety standards,
service charter to detail commitment to standard of services and continued engagement with
various sectors to enhance and evolve governance activities.
Self insured licensees – maintain licensing conditions, meet minimum performance standards,
implement effective risk management strategies to monitor risk profile, undertake regular
monitoring and review by Comcare and follow principles of administrative law, ensuring
decisions made under the SRC act are lawful, fair and rational.
EXTERNAL 11
DCMA – Appropriate management of delegation, appropriate use of Comcare’s systems
including Pracsys, undertake regular monitoring and review by Comcare ensuring compliance
with established standards while maintaining transparency and accountability in claims
handling.
Rehab authorities: ensure effective management and accountability in the rehabilitation of
injured workers by ensuring compliance with legislative requirements, managing rehabilitation
services in line with delegation provided by Comcare, adhering to performance standards, and
reporting on outcomes, subject to ongoing monitoring by Comcare.
Workplace rehabilitation providers: operate within the SRC act provisions, maintain established
service standards set by Comcare, maintain comprehensive documentation of rehab processes
and outcomes, reporting regularly to Comcare to demonstrate compliance, and ensure staff are
adequately trained and qualified to deliver services.
Are the Hawke and Hanks Review recommendations still relevant for rehabilitation
governance including introducing an auditing program for rehabilitation authorities;
27 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?
On the back of the Hawkes review, it was found that Licenses, with specific audit processes in
place, performed much better than premium paying agencies. Similarly, with the introduction of
the DCMA for ATO and Services Australia, these agencies have experienced an improvement in
the rehabilitation and return to work rates – should all agencies be subject to the governance
requirements implemented across Licensees and DCMA agencies to ensure effective
compliance with rehabilitation management systems?
What changes are required to the Comcare scheme to ensure future scheme financial
28
sustainability?
With over 50% of costs stemming from incapacity payments – consideration to be given to
modification to reduce impacts of extended absence across the scheme.
45 weeks of incapacity provides minimal incentive to return to work. Reducing the time frame
to 20 weeks before stepping down incapacity may provide greater incentive to return to work,
and reduce the financial cost associated with ongoing incapacity.
Consideration could also be given to a reduction in incapacity payable from day 1 of claims,
with a maximum reimbursement starting at 90%, and stepping down across the lifecycle of a
claim. This too would provide increased incentive to return to work.
Similarly, a step-down approach to treatment may also provide incentive to move towards
independent management of injuries, and lesson reliance on the scheme. With the current
approach, treatment is ongoing whilst medically recommended. Introduction of limits around
treatment could assist with the ongoing liability attributable to a claim. Ie for a physical injury,
sprain or strain, access to treatment could start to be reduced after the initial 12/24 months of
the claim, with cessation after 5 years. This is in line with the approach taken across the state
schemes.
Amendment to the current provisions to remove liability for injuries occurring during ordinary
recesses may also reduce costs attributable to the scheme, as would the introduction of
provisions specific to working from home. Current legislation could be interpreted to include
EXTERNAL 12
travel between home and work, where the workday is split across two locations. Amendment is
required to separate travel for this purpose from travel required when attending to business in
the field, or across several business-controlled sites.
An employer has no control over an employee’s home environment, however the employee
themselves, can control the level of risk exposure – this is very different to visiting a clients
premises, where neither employee or employer has an ability to monitor for or control risk.
All suggested changes would lesson the financial burden on the scheme, and assist with
ensuring ongoing financial viability, enabling additional costs to be invested into return-to-work
provisions to enhance RTW outcomes.
Is the scheme’s approach to prudential management adequate for Comcare’s
29
compensation liabilities? If not, what alternatives do you suggest?
Current approach is appropriate with below measures already in place;
Risk Assessment: to identify and evaluate potential risks that could impact the scheme’s
financial stability, including seeking actuarial advice to ensure adequacy of reserves and the
overall financial health of the scheme.
Regulatory Compliance: Ensuring that the scheme adheres to all relevant laws and regulations.
Capital Adequacy: Maintaining sufficient capital reserves to cover potential losses, through
careful management and monitoring.
Governance: Implementing strong governance practices to oversee the scheme’s operations
and decision-making processes.
Stress Testing: Conducting stress tests to evaluate how the scheme would perform under
adverse conditions, particularly modelling against future changes to scheme participation and
absorption of high-risk industry.
Applying a continuous improvement lens could see additional consideration to the use of
enhanced data analytics to improve forecasting and claims modelling, diversified investment
strategies to enhance return on premium investments, continued review at regular intervals and
increased engagement with stakeholders to ensure continued best practice approach is
applied.
Should Comcare be able to access, invest and use money from premiums to fund
30
proactive activities?
Using money from premiums to invest in scheme improvements and performance could ensure
ongoing financial viability but is not without risk. Investment in initiatives that do not perform as
expected, could lead to financial insecurity and instability. Comcare would need to maintain
reserves to cover outstanding claims liabilities, ensuring that there are sufficient funds to meet
future claims, alongside any investment portfolio.
Are changes required to the licence fee setting provisions under the SRC Act to allow
31
for effective and efficient cost recovery?
EXTERNAL 13
Current fees represent the costs incurred by the Safety, Rehabilitation and Compensation
Commission and Comcare in carrying out their respective functions under the SRC and WHS
Acts.
Better accountability and transparency to articulate future increases in premiums / licence fees
across scheme, outlining work to be undertaken to future proof scheme.
32 Are the requirements under the SRC Act for membership of the SRCC appropriate?
Unable to provide comment.
Are the arrangements for tripartite involvement under the WHS Act and SRC Act
33
adequate? If not, what additional arrangements are required under the SRC Act?
Unable to provide comment.
Do you have suggestions for improvements to facilitate tripartism within the Comcare
34
scheme? If so, what are they?
Unable to provide comment.
Scheme entitlement – discussion questions
Does the definition of ‘claimant’ in the SRC Act reflect contemporary working
35
arrangements? Are the deeming provisions adequate?
Section 5 of the SRC Act is still reflective of current working arrangements – no amendment is
necessary.
Deeming provisions are also considered adequate.
What is best practice for determining injuries and diseases? For example, is it still
36 appropriate to separate these conditions? Is there a different approach needed for
certain injuries, for example psychological?
Current approaches are appropriate and recognise differences between injuries occurring in
the course of employment and diseases, where the onset is gradual and can have many
causative factors.
The requirement remains that separation is required between injury simpliciter occurring in the
course of employment, and disease claims requiring determination regarding causative factors.
EXTERNAL 14
Wording in 5A(1)(c) could be strengthened to further distinguish between aggravation and
exacerbation of preexisting medical conditions, noting this can cause confusion for claimants.
Is there sufficient clarity as to when a claimant sustains an injury ‘in the course of their
37 employment’ if they are away from their usual place of employment or injured during an
interval within their usual period of employment?
Additional clarity is required in determining claims occurring ‘in the course of employment’.
Connection to employment should remain the deciding factor – travelling for work, attending to
duties offsite, completing work related study / medical appt all fall within boundary of
employment related, however consideration should be given to removing provisions for injuries
sustained during an ordinary recess.
Definition of an ordinary recess – should a workplace be responsible for injuries occurring
outside of the workplace when a claimant is no longer on paid work time?
An employer has no control over injuries occurring in unknown environments and usually,
provisions for compensation are available within other jurisdictions. Majority of claims received
for injuries occurring during an ordinary recess are caused by hazards on street, slips/trips in
public places or through traffic accidents all claimable through public liability / TAC rather than
through employment related coverage.
Providing greater clarity / removal of this provision would reduce claim costs associated with
injuries outside of employer control, and not significantly impact on claimants, as compensation
available through other means. Removal of this provision will also reduce the administrative
burden associated with Comcare seeking third party recovery action.
38 Is the current threshold for liability for diseases (significant contribution) appropriate?
Current wording in Section 5B
(2) In determining whether an ailment or aggravation was contributed to, to a significant
degree, by an claimant's employment by the Commonwealth or a licensee, the following
matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the claimant to the ailment or aggravation;
(d) any activities of the claimant not related to the employment;
(e) any other matters affecting the claimant's health.
This subsection does not limit the matters that may be taken into account.
(3) "significant degree" means a degree that is substantially more than material.
The current definition of “Significant” v “material” enables a delegate to make an informed
decision regarding the significance of work-related impacts on the development of a disease
EXTERNAL 15
impacting a claimant – current wording, and guidance to consider duration, nature,
predisposition and other relative factors to provides an appropriate threshold for determination.
No change recommended. However potential education piece required to ensure claimants are
aware of this distinction, and understand the threshold required for an injury to be
compensable.
Similarly, where the significance of a work-related incident lessens, and compensation is
reviewed, often claimants are aggrieved. Expectation setting regarding the longevity of a claim
may be required. This could also be addressed by the introduction of step-down provisions,
which would clearly articulate the lifecycle of a claim, and set expectations regarding a
cessation point for a matter.
39 Are the current exclusions under the SRC Act appropriate?
Current exclusionary provisions:
Section 5A(2) For the purposes of subsection (1) and without limiting
that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the claimant's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of
the claimant's employment;
(c) a reasonable suspension action in respect of the claimant's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of
the claimant's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a),
(b), (c) or (d).
(f) anything reasonable done in connection with the claimant's failure to obtain a
promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with
his or her employment.
Section 6(1C) - travel between an claimant’s place of residence and usual place of work is not
taken to be at the direction or request of the Commonwealth or a licensee.
Section 6(3) disqualifies the application of section 6(1) where the claimant sustains an injury as
a result of voluntarily and unreasonably submitting to an abnormal risk of injury while at a place
referred to in section 6 or during an ordinary recess.
Section 7(7) A disease suffered by an claimant, or an aggravation of such a disease, shall not
be taken to be an injury to the claimant for the purposes of this Act if the claimant has at any
time, for purposes connected with his or her employment or proposed employment by the
Commonwealth or a licensed corporation, made a wilful and false representation that he or she
did not suffer, or had not previously suffered, from that disease.
Section 14 (2) Compensation is not payable in respect of an injury that is intentionally
self - inflicted.
Section 14 (3) Compensation is not payable in respect of an injury that is caused by the serious
and wilful misconduct of the claimant but is not intentionally self - inflicted, unless
the injury results in death, or serious and permanent impairment.
EXTERNAL 16
Section 53 of the SRC Act requires that notice of injury must be provided as soon as
practicable after an claimant becomes aware of the injury.
Exclusionary provisions are appropriate and enable consistent application across the scheme.
However, greater clarification and expansion of Section 53 may provide increased clarity to
claims managers and claimants alike regarding delays in claims lodgement.
Introduction of a statutory timeframe limiting when a claimant can retrospectively lodge a claim,
may simplify this provision, and provide this clarity.
How can entitlements be structured to improve outcomes for claimants and their
families? What changes can balance fair support while ensuring the financial viability of
40
the Comcare scheme? For example, should changes be made to the step-down
provisions or the duration of payments?
The Comcare scheme is already one of the more generous Worker’s Compensation schemes
available. A downside of the scheme, is that ongoing liability can create a reliance on the
scheme, and hinder return to work efforts in a small number of cases.
Consideration to step down provision is required to reduce reliance on the Comcare scheme.
Current incapacity provisions enable 45 weeks of full compensation, with ongoing incapacity
until life end. Best practice across other Australian schemes sees a reduction in benefit after a
set period of time. WorkCover Victoria ceases all weekly payments after 5 years unless a
claimant has a permanent impairment greater than 20%.
Amendment to include similar provisions within the Comcare scheme will safeguard the
ongoing financial viability of the scheme and putting an onus on injured workers to take a more
independent approach to management of any ongoing injury. This will promote return to and
recovery at work, and the benefits of a return to the workplace, while reducing a reliance on
feel-good treatment, promoting the therapeutic guidelines as the leading source of
independent, evidence based, practical approach to treatment.
What changes are needed to best determine fair compensation for medical treatment
41
and rehabilitation and household and attendant care services?
Current legislation: If there is ongoing liability for an injury under section 14 of the SRC Act, then
claimants may seek;
- Access to attendant care s29(3), as per definition in 4(1) and be reasonably required.
Need for care can be assessed under Section 70 (for Comcare) or section 108F (for
licensees)
- Access to household help under 29(1) as per definition in 4(1) and be reasonably
required. Need for care can be assessed under Section 70 (for Comcare) or section
108F (for licensees)
- Medical treatment s16, must be in keeping with the clinical framework, be reasonable
and cost effective (apply AMA rates)
Improvements to these provisions could be realised through introduction of conditional
requirements - for claimants refusing to undertake treatment, consideration should be given to
ceasing or placing restrictions around ongoing incapacity payments.
EXTERNAL 17
Where a claimant could see medical improvement, and an improvement in their capacity for
work through the provision of active treatment, and they decline to participate, legislation
should include provision to reduce / suspend other entitlements.
The current scheme allows a claimant to not engage with treatment in any capacity but
continue to claim an ongoing entitlement to attendant or household assistance and / or
incapacity payments. This provides no incentive for a claimant to actively pursue treatment in
order to become well, and return to work. Having benefits linked to active participation in
treatment, as well as rehabilitation, may facilitate a faster recovery, and better return to work
rate, while ensuring access to treatment continues.
Additional clarification is required regarding the appropriateness of treatments that may assist
claimants by removing ambiguity from the scheme regarding what is and what isn’t considered
reasonable. With advancements in holistic treatment, and claimants exploring a range of non-
medical options for treatment, publication of advice regarding items such as herbal/Chinese
medicine, use of medicinal cannabis, alternate therapies may provide greater clarity regarding
the threshold required to be considered under the treatment provisions.
42 How should the permanent impairment provisions be improved?
Reviewed most recently in March 2023 with introduction on Guide V3
- Review of the PI criteria to establish clear and consistent criteria for assessing
permanent impairment reducing ambiguity and ensuring fair assessment.
- Upgrading digital platforms to enable treating practitioner to input information directly,
streamlining the claims process and reducing the administrative burden associated with
current paper-based application.
- Adjusting compensation rates to better reflect the financial impact of permanent
impairments, ensuring workers receive adequate support, with maximum rate payable
increased in line with cost-of-living expenses.
- Currently reviewed 1 July annually and increased in line with CPI – however review of
baseline rates may be required.
Does the Comcare scheme sufficiently support injured claimants with no potential to
43
return to work?
Yes
- No timeframe on application of permanent impairment / non-economic loss payment,
with repeat application available
- Access to incapacity / medical treatment on provision of appropriate medical
documentation, on an ongoing basis
- Provision of care for dependants where required.
- Incapacity steps down from 45 weeks, however public service employees may also be
eligible for invalidity retirement pension (PSS/CSS) after this period of time. PSSAP
employees, also have access to TPD payment through application to superfund.
Should a step-down approach be considered to ongoing benefits / incapacity, consideration
would need to be given to claimants with no potential to return to work. Where there is a
permanent impairment greater than 30%, and a permanent incapacity for employment,
incapacity payments should continue.
EXTERNAL 18
Another consideration, in line with Victorian WorkCover Scheme – would be the inclusion of
post-52 weeks superannuation payment to cover lost super. Payment to only be considered if
pre-injury employer has no legal obligation to continue superannuation payments.
Should the scheme allow more options to finalise claims, including lump sum payments?
44
What safeguards should be in place?
Under the Victorian WorkCover scheme, claimants suffering from a permanent impairment can
seek damages for long term incapacity. Noting however that once a claimant receives a lump
sum for lost wages, weekly incapacity payments cease.
Consideration could be given to introduction of a similar condition within the SRC Act, where
upon permanent impairment is found, application of a lump sum payment can be sought, with
future section 19 incapacity payments ceasing.
45 Should access to common law continue to be restricted?
Current restrictions are considered appropriate
(Common law claims are covered under sections 45-48)
Under the current provisions of the SRC act in order to commence common law proceedings
against an employer, a claimant must first make a permanent impairment claim and be
assessed as suffering a whole person impairment of 10 per cent or higher.
Claimants must then make an election;
- Should the worker elect to receive their lump sum entitlement they will be prevented
from bringing common law proceedings against their employer.
- Alternatively, a worker may elect to institute common law proceedings and not receive
the lump sum benefit payable under the permanent impairment provisions.
Once made, an election is irrevocable.
Moreover, as dictated by s45(4), a court cannot award an employee damages exceeding
$110,000. These two sections, read together, prevent a claimant from receiving more than
$110,000 for their work-related injury from their employer via common law proceedings.
Current provisions also restrict the timing in which common law proceedings can be made –
with a worker having only three years in which to commence common law proceedings.
If access to common law continues to be restricted, should there be a greater right to
46
redeem compensation benefits?
SRC Act is generous in current entitlements.
Do the provisions in the SRC Act aimed at preventing double-dipping in relation to like-
47
remedies need changing following Comcare v Friend?
EXTERNAL 19
In question 1 we consider the primary objectives of a worker’s compensation scheme – one of
which should be - Legal protection for employers with WC the remedy for workplace injury.
In Comcare v Friend, the Federal Court found that the settlement payment made was not
captured under section 48 of the SRC Act because it could not be characterised as a recovery
of damages in respect of an injury for which compensation was payable under the SRC Act.
The Court held that compensation under section 46PO of the Australian Human Rights
Commission Act 1986 (the AHRC Act) was a statutory remedy, rather than one arising under
the common law, which meant that it was to be governed by the policy considerations of the
anti-discrimination statute to which it applied.
Additionally, the Court found that the damages available under section 46PO(4)(d) of the
AHRCA for unlawful discrimination and sexual harassment were distinct from damages in
respect of an injury for which compensable is payable under the SRC Act, because no
compensation was available under the SRC Act in respect of unlawful contraventions of the sex
or disability discrimination legislation.
Given the changing nature of claims made since the introduction of the SRC Act, and
amendments to WHS legislation regarding Sexual Harassment and disability discrimination, is
amendment also required to the SRC Act to provide further expand the criteria applied in
section 48, to either exclude compensation under section 46PO of the Australian Human Rights
Commission Act 1986 or to ensure provisions for unlawful contraventions of the sex or
disability discrimination legislation, to circumvent claims such as these, and safeguard against
double dipping under other legislation
Should there be any adjustments to workers’ compensation payments for compensation
or support from other sources? For example, what impact should the receipt of
48
statutory entitlements and other income have on the entitlement to, and calculation of,
compensation?
Any payments received from sources other than Comcare should be considered as earnings for
the purposes on incapacity, and a subsequent reduction applied in the amount payable to
ongoing incapacity payable for a period.
Rehabilitation and return to work – discussion questions
Does the Comcare scheme provide suitable criteria and arrangements to support:
49 a. Early intervention?
b. Return to work?
No – unintended consequence of the introduction of the ‘Guide for arranging rehabilitation
assessments and requiring examinations 2024’ is delays in the provision of assistance under
section 36. Need to differentiate between assistance provided by a rehabilitation provider and
assessment by an independent assessor for the purpose of an independent medical exam.
Rehabilitation support can be used to facilitate contact with treating doctors and promote early
treatment and recovery at work. The introduction of a mandatory waiting period while
employers contact treating practitioners and consult regarding ability to participate in a return-
EXTERNAL 20
to-work program, is detrimental to injured claimants, with employers hamstrung by the
provisions enforced within the guide.
Victorian Work cover scheme: legislative requirement to provide claimant with suitable
employment if they have an incapacity for work, for a 52-week period following the injury, after
which time responsibility ceases.
Consideration to reduce long term requirement to provide alternate duties under the SRC Act,
may assist employers and encourage full return to work for claimants, reducing financial
implications to scheme.
Should the Comcare scheme provide for provisional payments? If so, what should be
50 the length and amount of any such payments, and how/whether to recover payments if
ultimately the injury is not due to work?
As discussed earlier, consideration to be given to opening provisional payments for treatment
only to encourage early intervention and support the RTW process.
Clear timelines would need to be documented to ensure provisional payments were accessible
until initial liability determination only. Provisional payments should not continue into the
reconsideration / appeals process.
The potential gain, with improved return to work, may assist to balance the increased cost in
providing these payments.
Should a claim be denied, provisional payments would not be recouped, given risk of financial
distress to claimants.
Victorian WorkCover scheme: Eligible workers can access provisional payments for reasonable
treatment and services (mental health only) for up to 13 weeks, even if their claim is rejected.
Should the SRC Act provide for greater oversight of rehabilitation authorities and
51
rehabilitation providers?
Current oversight considered appropriate.
Should the SRC Act provide Comcare with greater regulatory powers in relation to
52
rehabilitation?
Current regulatory powers considered appropriate.
EXTERNAL 21
Dispute resolution – discussion questions
What is your experience of dispute resolution in the scheme? What improvements would
53
you suggest arising from that experience?
A benefit of the ATO participation in the DCMA, is that there is increased scope to manage
compensation matters in conjunction with other industrial matters. Intra-agency management
also enables increased understanding of mitigations available outside of the compensation
scheme to find resolution.
An example – where claims are centred around interpersonal conflict, compensation may not be
payable based on the circumstances and exclusionary provisions of the SRC Act, however
settlement of the claims process may be achieved through change in operational reporting line
– this can be facilitated by business, with a consent decision to affirm the claim determination
reached.
Similarly, discussions can be had to facilitate return to work, or support for medical treatment
where the scope of the SRC act does not enable compensation benefits to be paid. Example – a
staff member left the office after starting to feel unwell – subsequently had a heart attack
within 500m of the office. Compensation was not payable, as not considered in the course of
employment, however the ATO could support with assistance under our early treatment
program, noting that if the claimant had stayed in the workplace – compensation would have
been payable.
In this case, facilitated discussion post initial claim determination enabled proactive offering of
support, and prevented the matter escalating to reconsideration. The SRC act was applied as
intended, however the claimant was supported and appreciative of workplace assistance.
Formalised dispute resolution being built into the SRC Act could prove problematic. This may
delay matters moving through the claims process, and further hinder return to work efforts.
Dispute Resolution should be considered on a case-by-case basis where matters may be able
to be resolved informally, rather than added as an additional step in the process.
Conciliation is already a feature of the ART process, enabling for resolution by consent prior to
hearing, facilitated by an external party.
Should the legislative framework provide for pre-litigation dispute resolution processes
54 prior to external review by the Tribunal? If so, at what point in the process and by
whom?
No – as above – should be used where matters may be able to be resolved informally, rather
than added as an additional step in the process. Forcing consideration may lead to further
delays in the process, and further hinder return to work efforts.
Should the legislative framework be changed to adopt best practice in dispute
55
resolution from other schemes? If so, please specify.
Review of schemes across other jurisdictions shows similar approaches to conciliation –
process in place for secondary review of the decision, followed by conciliation prior to hearing.
Is there a role for medical panels to contribute to the dispute resolution process, and if
56
so, how should such a panel be constituted, and should the panel’s opinion be binding?
EXTERNAL 22
There is scope where medical information is inconsistent to be able to refer to an independent
panel for review / interpretation, to better understand factors impacting on a claim.
Introduction of a panel, once decisions have been made on an issue, may complicate the
dispute process, and call into question the validity of the original IME opinion. Time taken to co-
ordinate a panel and seek additional opinion will further delay decision making and
disadvantage the claimant.
There is opportunity for claimant and respondent to seek alternate medical opinion and advice
during the ART process.
How can dispute resolution processes be structured to limit further harm to claimants?
57 For example, should there be dispute resolution at the reconsideration stage? Who
should pay legal costs associated with the reconsideration?
Delaying the process to include another step has the potential to cause further harm to
claimants. Conciliation attempts already feature opportunity for informal resolution prior to
hearing.
Agencies should consider opportunities to resolve matters inhouse if opportunity to do so
independently of Comcare, especially where claims are centred around industrial issues.
Any legal costs associated with action taken to pursue compensation should remain the
responsibility of the claimant. There are a number of no win no fee firms able to support
claimants experiencing financial hardship ensuring equitable access for all employees.
Do you have other suggestions for improvements to the processes for resolution of
58 disputes? For example, other avenues for the resolving of disputes or providing for ‘all
in’ settlements?
Consultation with agencies regarding options for settlement should feature in Comcare’s
standing procedures for instructing officers, to enable ‘all in’ settlements where claims activity
is generated by industrial dispute.
Having agencies representation enables consideration of claim and return to work concerns
and may lead to improved outcomes for claimants.
Scheme administration – discussion questions
Should the Comcare scheme continue to provide for delegated claims management
59
arrangements (DCMA)?
As a participating agency in the DCMA, the ATO experience has been positive.
Since commencement of the DCMA the ATO have reduced premium costs by 90%, with a
premium rate reduction of 1.26% (falling from 1.37 to 0.11% of payroll).
EXTERNAL 23
This has been accompanied by an increase in sustainable return to work rates, and in effective
decision making, validated with an increased affirmation rate upon appeal.
Participation in the DCMA has allowed for greater communication between rehabilitation and
claims functions leading to more rigorous management and investigation of ongoing matters.
A feature of the ATO approach is to ensure effective evidence gathering during the
determination process to enable accurate decision making. Introduction of the stop clock
provision has further supported this approach, providing additional time for collection of
evidentiary material.
Identification of alternate pathways to claim has also impacted on ATO success, with many new
claims electing to pursue our early treatment program as an alternative to compensation.
Approximately 8% of claims lodged withdraw in favour of this program. Many more choose this
pathway prior to lodging a claim for compensation. This is especially useful for minor injuries, or
early onset disease claims, where quick access to reimbursement can assist with return to or
recovery at work.
The ATO experience within the DCMA has enabled a more targeted focus on return to and
recovery at work, enabling additional support to be provided to claimants to better tailor their
experience. Working in conjunction with ATO RCMs, the claims delegates support provision of
equipment and a tailored return to work program focusing on maintaining relationships with the
workplace, encouraging consultation between RCMs and treating practitioners, and
establishing medically guided return to work as soon as practical.
Application of alternate dispute resolution to achieve resolution of broader industrial issues, is
also achievable under the DCMA.
What aspects of the delegated claims management arrangements should remain? What
60
changes are needed?
The DCMA in its current form, meets ATO requirements. ATO currently manage ART matters
inhouse, with ATO OGC acting as advisor to external counsel. I understand that this is not
consistent with the Services Australia model, with Comcare retaining responsibility for this
function. The added benefit of the ATO model is that this allows for greater holistic
management of ART matters, including the potential for global settlement where multiple
industrial matters are being considered. Costs for this remain partly with the agency, rather
than with Comcare.
Potential financial savings could be realised by moving administrative functionality into the
agencies, as opposed to contracting these services to third party providers. This would require
additional resourcing within agency, but retains the services within government, in alignment
with the strategic commissioning framework.
A disadvantage of this approach however would be removal of an independent party providing
less separation between claimant and agency and has the potential to cause concern for
claimants.
Are further changes required to the claims decision-making framework to improve
61
outcomes and ensure fair, accurate and timely decision making? If so, please specify.
True and correct application of the provisions of the SRC Act in its current form, enable fair,
accurate and timely decision making.
EXTERNAL 24
Changes suggested within this submission, centre around improving financial viability of the
scheme, and introduction of legislative provisions to encourage improved transition to self-
management of injury and illness, and more effective return to work.
62 How can unintended consequences best be avoided?
We have recently seen unintended consequences with the introduction of the ‘Guide for
arranging rehabilitation assessments and requiring examinations 2024’ being extended delays
in the provision of assistance under section 36, likely due to the speed at which the guide was
created and introduced.
To avoid further consequence to claimants, work is required to ensure that any proposed
changes to the legislation are tested end to end to adequately determine the impact of the
change on both the scheme and claimants, prior to introduction.
EXTERNAL 25