WORKERS COMPENSATION REGULATION 2016

10 May 2017

Disallowance Motion


The Hon. ADAM SEARLE ( 11:33 ): I lead for the Opposition in debate on this disallowance motion, which the Opposition will support. The 2012 workers compensation reforms were truly breathtaking. They represented the most drastic reduction in benefits to injured workers in this State effected in a single reform package. I acknowledge that from time to time all compensation packages need to be rebalanced. However, what made this reform package truly notable was that there was no attempt to achieve fairness. In the past, everyone had to shoulder part of the burden of reform. In previous reform packages workers were required to play their part by accepting changes to benefits; providers played their part by increasing premiums or being subject to increased workplace penalties or other obligations; and even scheme agents were called upon to play a role. In this package, the entire burden of scheme repair was placed on the backs of broken and injured workers.

The Hon. Trevor Khan: Point of order: My point of order relates to relevance. This is a motion to disallow a regulation. We are now going back in history to legislation before this House in 2012. That is well and the truly outside the leave of the motion.

The Hon. ADAM SEARLE: To the point of order: We are dealing with the removal of benefits from injured workers in clause 9, which is the subject of this disallowance motion. I am talking directly to the issue of workers’ benefits and placing that in the overall context of what the Parliamentary Secretary kept referring to as “fair and balanced”. I am responsive in one sense to what he said and I am referring directly to the substance of the motion before the House.

The PRESIDENT: It is well recognised that members are allowed wide latitude not only in second reading speeches but also when speaking to motions. However, they must be generally relevant to the motion before the House. I presume that the Leader of the Opposition will now proceed to discuss clause 9 and that he has completed his wideranging comments.

The Hon. ADAM SEARLE: Clause 9 deals with the removal of benefits provided to injured workers in relation to work assistance. The regulation constrains that area. What was notable about the legislation under which this regulation was made—which is another issue—was that there was no strengthening of obligations on employers to take injured workers back into the workplace. To the very limited extent that I dealt with workers compensation matters at the beginning of my time at the bar, I found every offer of settlement from the insurance companies to injured workers carried with it a requirement that the injured worker resign their employment. It was a standard course of action.

This meant that the injured worker was disconnected from the world of work. That meant that when they went job hunting they had to do so as an injured worker; they were not returning to their place of work but seeking to find a new place of work. That is a very difficult undertaking. As Mr Shoebridge indicated, where they do find work, they must accept any work. That often means short-term engagements, extensive travel, and not necessarily working in the field in which they have experience. Of course, the work capacity testing regime underlines that because it tests the capacity not for the work previously undertaken or in the area in which the worker is experienced and qualified, but work that may not even exist.

So a worker could have their benefits reduced or cut off, because they are deemed to be capable of certain types of work, even though that work may not exist. That means that people need the work assistance that is curtailed by this regulation.

Mr David Shoebridge: The job can be anywhere in New South Wales.

The Hon. ADAM SEARLE: I acknowledge that interjection. On the one hand, it is quite mean spirited for the legislation to deprive the injured workers of their financial and medical benefits or to telescope the time in which they can access it and essentially force them off benefits because they are capable of some theoretical or fictional work anywhere in the State but then not provide them with the meaningful tools to get to that place of work. I understand the Parliamentary Secretary’s comment that this could be a short-term engagement. The disallowance of this regulation would not break the bank. It would barely be a statistical blip in the scheme’s finances, but it would restore some small semblance of balance and fairness by providing injured workers seeking to re-enter the workforce with a small amount of benefit. I note what the Parliamentary Secretary said about the 14-day time frame. Nevertheless, the removal of that provision from the regulation does not weaken or in any way reduce the obligation on the insurer to determine the matter properly, but that weighs out, in my view, the removal of the benefits that clause 9(1) affects, and that should be balanced and restored. A lot could be said about the scheme—

Reverend the Hon. Fred Nile: We are not debating the scheme.

The Hon. ADAM SEARLE: Except to this extent, there should be a further rebalancing, and this is a very small ask. The House should join those of us who have indicated support for the disallowance. The ultimate objective of workers compensation is not only the payment; it is providing a meaningful framework to get people back into work, if they can medically return to work. Employers have a lot of prejudice about engaging injured workers. Workers often sustain permanent injury, which constrains the work they can do. Let us take this small step and provide a little bit of extra assistance to help workers return to work.