Comcare changes threaten workers’ rights and workplace safety
28th Nov 2014
State and territory-based workers’ compensation schemes are in danger of being abandoned by employers if changes to the Comcare scheme are approved, the Australian Lawyers Alliance (ALA) said today.
The legislation, the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (Cth) was debated this week in the House of Representatives. It will encourage employers registered in more than one state to move their workers out of state-based compensation schemes and into the Comcare scheme, which provides inferior support to workers who face serious injury, and inferior safety oversight.
ALA National President Andrew Stone said that opening up the Comcare scheme would be disastrous for Australian workers, with the new measures not only slashing worker rights but undercutting state-based schemes and putting upward pressure on premiums. Mr Stone said that small- to medium-sized businesses, particularly in remote states and territories, would be disadvantaged, and workplace safety would be given to a grossly inferior regulator, placing lives at greater risk.
“The proposed changes to Comcare will see injured Australian workers left out in the cold,” Mr Stone said.
“Comcare is an inappropriate mechanism for a national compensation scheme. It is a scheme designed for white-collar workers who are at significantly lower risk of severe and serious injury.”
“The scheme is also notorious for low benefits, high disputation rates, delays and lack of staffing levels,” Mr Stone said. “Furthermore, Comcare compensation payments for general damages are capped and have not been increased since 1988.”
Mr Stone said the proposed Comcare legislation would strike at the heart of the financial stability of state- and territory-based workers’ compensation schemes.
“If this legislation passes, employers may move their workers out of state-based schemes, leaving huge holes of unfunded liability which is likely to mean state-based premiums will soar,” Mr Stone said.
“Opening the gates to Comcare will disadvantage some states more than others,” Mr Stone said. “Western Australia, Queensland and Tasmania will be hardest hit by this disadvantage because it is less often feasible for employers in those states to operate across state boundaries.”
“Employers unable to migrate, usually small to medium businesses, will pick up the tab for those usually larger entities which migrate to a minimalist and unfair scheme. The attack on state schemes is irreconcilable with the Prime Minister’s recent observations on cooperative federalism and states’ rights,” Mr Stone said.
Mr Stone said that Comcare is burdensome, paternalistic, and bureaucratic for workers and employers.
“Comcare has no meaningful access to common law damages for injuries caused by the negligence of an employer, while its design means premiums have to go up unless benefits are slashed,” Mr Stone said. “The Abbott government intends to do exactly that -- Minister Abetz says there is a second piece of legislation drafted to slash rights and entitlements. We might see that early next year.”
“The proposed laws are also economically inconsistent with the Abbott Government’s attempts to minimise fiscal pressure on the Commonwealth,” Mr Stone said. “Every reduction in rights to pursue employers who run unsafe workplaces actually increases the burden on the Commonwealth and the taxpayer, because injured workers often become a long-term burden on Centrelink and Medicare. Under many existing state arrangements, those imposts on the Commonwealth are minimised. This is poorly-considered, and clearly ideologically-driven legislation.”
“Comcare also has no meaningful and effective workplace health and safety regime,” Mr Stone said. “Employers who migrate cease to be covered by state OHS laws and enforcement regimes, and become covered by the Commonwealth scheme. Comcare employs around 40 inspectors for the whole country. Queensland alone has 216 active field inspectors.
“The Commonwealth laws don’t take account of particular challenges in industries such as mining, while State laws do,” Mr Stone said. “Migration to Comcare creates a massive safety gap, and lives will be lost as a direct consequence of that gap.”
“This legislation fails each of the fairness, safety, states’ rights and economics tests” Mr Stone said. “Comcare truly is an ‘everybody loses’ scheme, and this legislation makes a bad system far worse. It ought to be rejected by the Senate.”
About the changes:
The Safety, Compensation and Rehabilitation Legislation Amendment Bill 2014 was introduced in March 2014.
An overview of some of the changes:
- Any corporation which employs staff in more than one state will be able to apply for a Comcare licence, meaning that the employer can migrate out of the relevant state or territory workers’ compensation scheme. This is to be contrasted with the current “competition test” which only allows migration subject to entities being in completion with a Commonwealth entity. At present, only around 30 large employers hold self-insurance licences.
- Workers injured while on a recess break outside of their physical place of employment will receive nothing.
- Comcare has been struggling financially for some time. Premiums for employers are higher than some States including Victoria and Queensland.
- The Comcare scheme effectively precludes common law claims for compensation against unsafe employers. This removes one disincentive to employers playing fast and loose with safety, and also forces more injured workers and their families ultimately onto Centrelink. The Commonwealth taxpayer therefore carries an increased burden for the unsafe behaviours of some employers. This is to be contrasted with most state and territory schemes, which do allow, in various forms, redress against unsafe employers, and by various mechanisms for money to be remitted to the Commonwealth, or entitlement to Centrelink be deferred.
- Comcare is also renowned for its woefully inadequate OHS oversight and enforcement processes and infrastructure. In 2011/12, Comcare finalised only five legal proceedings, where 6.5 per 1000 employees were seriously injured. In Victoria, which had a similar serious injury rate of 7.6 per 1000 employees, WorkSafe Victoria finalised 116 legal proceedings.
Further information about Comcare can be found here.