Return to Work Bill

Third Reading

Adjourned debate on third reading.

(Continued from 23 September 2014.)

Mr MARSHALL (Dunstan—Leader of the Opposition) (12:01): I think we have had sufficient debate in this house regarding the government's proposal for the Return to Work Bill. I say 'sufficient' because I think we have had many people in this house place on the record their thoughts regarding this bill but, in doing so, we have not in any way delayed the progress of this bill through this house. I gave this commitment on behalf of the Liberal opposition to the Premier in March and I have made that commitment to the government over an extended period of time.

We want to see relief for businesses in South Australia and a better system for workers in South Australia as urgently as possible, and that is why we plan to pass this complex piece of legislation through this house this morning, just over 24 hours after the government had introduced this bill.

Of course, it is my obligation on this side of the house to castigate the government for taking so long to bring this piece of legislation—this tardy piece of legislation—to the house. Not only did it take an extraordinarily long period of time but it was filled with a whole pile of errors that they themselves have had to correct with their dozens of pages of amendments they have given to the opposition just in the last couple of days. Nevertheless, we are here. We have a bill. We are going to see that progress through our house today to the other place.

In some instances, we have had to reserve our position regarding some of the late amendments put to us, but generally speaking we want to see progress. We have the worst WorkCover scheme in the entire nation, and I must say I appreciate the government's frankness in confirming that they find the current system completely and utterly unsatisfactory. We need to do something because business in South Australia is really struggling under the current regime and what we can do to improve it should be the focus for all members of this parliament, irrespective of which side of the house they sit on.

Can I just say that we do have a fair degree of scepticism on this side of the house because this is not the first time the government has proposed some reforms to this broken system. In fact, year after year we have ideas put forward, and some we have expressed grave concern over — in particular, moving to a monopoly claims agent, moving to a monopoly legal practice for legal matters. These are things we have raised concerns about.

With this bill we are optimistic. The Deputy Premier has assured the house that this will be different, and we look forward to this being different because we do need relief in this important area. I am delighted the opposition has acted in a responsible way to pass this legislation through the house today, but it also provided the scrutiny that was needed. I know this parliament sat until after 11 o'clock last night, because it is an important piece of legislation and we have to get it right. There will be further consideration in the other place, but with those concluding remarks I look forward to the vote in a few minutes' time.

The DEPUTY SPEAKER: The Chair definitely appreciated the cooperation of all members last evening in what I thought was excellent work on the bill.

The Hon. P. CAICA (Colton) (12:05): I rise to support the third reading of the bill, as you would expect me to do. I congratulate the Deputy Premier on his engagement with a significant majority of stakeholders on the bill to the extent that (although you do not want to count your chickens before they hatch) it appears, at this point in time, to at least have the support of the majority.

For most of my working life I have been involved, in some way or another, with WorkCover, with the Workers Rehabilitation and Compensation Act, with injured workers from my time as a firefighter and being their representative, to my brief time as the minister responsible for the then and still current legislation. The current legislation was introduced in 1986, and it was well founded and well intentioned, with the objective of a universal compensation and rehabilitation system that was meant to support injured workers to return to meaningful work—hopefully, in their pre-injury duties and role—and to provide proper support to those who could not return to that role.

I believe another benefit was to be an improvement in workplace health and safety, the identification through the system of those industries and workplaces where injuries were more common or prevalent and, in turn, to change or modify work practices to improve workplace safety to make the workplaces safer places for all workers.

We know that despite the, mostly, best endeavours of many, and despite the sound and well-meaning objectives, the system has, in the main, failed the very people it was established to help — injured workers. The very reason I am supporting this bill is because the system as it exists today has not fulfilled this objective. It is a system that is in desperate need of proper reform, a system that cannot be allowed to continue in its current form, to perpetuate its shortcomings and its previous failures.

What we have seen over the years is so many getting fat from the system that, at its very genesis, was meant to be for the welfare and wellbeing of workers at their workplace. I will not call them parasites on the system, but we have seen so many do so very well out of an industry that we created: lawyers, doctors, rehabilitation providers, return to work providers, case managers, the list goes on and on and on, all making a pretty good living but, in the main, not delivering what they were meant to deliver.

Yesterday the member for MacKillop quoted me from 2009, and what he quoted stands the test today as it did then, as it will tomorrow and as it will in the future: that is, ensuring that we have a system that is responsive to the needs of injured workers and that has, at its very core, the earliest possible intervention. That is one of the main thrusts of this particular bill.

I wish to finish off by making just a few comments. The very reason I entered politics was, through this role, to assist people in helping themselves, and to be part of a government that continually works towards creating a society that is fairer and better, a society that is a supportive and compassionate place for all, particularly our most vulnerable, marginalised and disadvantaged.

I am supporting the bill, as I already said, but I remain somewhat anxious about the bill. I acknowledge the comments of the leader with regard to his scepticism, and I do note the comments of the Deputy Premier yesterday that this time we are going to make a difference and we need to make a difference.

I trust that the obligations of those within the system who have failed in their obligations of the past will, under this bill, now be held to account, that what were once obligations that were expected will be replaced by stringent mandatory requirements, or guess what? If you do not meet those requirements, you are out the door.

I trust also that the comment that everyone will win or be better off with this reform package is fulfilled. I trust that injured workers will be better supported by a system and not be disadvantaged in and by the pursuit of lower premiums. There is now a greater responsibility, I believe, for all to improve the way we and each other do things. Their commitment to doing things must be more effective and result in a more effective system and everyone—the industries, the corporation, employers, unions, workers—is required to be part of making sure that this reform works.

While I remain anxious and even nervous and concerned about what the outcomes might be, I do want to highlight a couple of concerns, in particular the 30 per cent whole person impairment rating. Other concerns include how we handle the existing people, commonly referred to as 'the tail'—those people who have been within the system for 10, 15 or 20 years who, through no fault of their own, have not been provided with the support that was ever going to get them back to work. How we handle them will be critical, I think, and a reflection of us as a parliament that is responsible for the WorkCover Corporation.

I am concerned that some of the provisions may be a bit mean for workers and I will, as I know many of my colleagues will, closely monitor the implementation of the bill. It is essential that we not only monitor the implementation of this bill but hold those operating in the system to account. I trust that the system, as a result, will not benefit employers through reduction in their contributions at the expense of injured workers.

I commend the bill to the house, and I look forward to working with everyone involved with it to make sure that on this occasion we get it right. I congratulate the Attorney-General on his work to date.

Mr WILLIAMS (MacKillop) (12:12): It is not very often that I contribute to a third reading, but this is a bill that marks a fundamental change—I hope. One of the chief problems that has dogged our whole WorkCover injured worker compensation and rehabilitation scheme over the last 28 years of the existence of the current legislation has been denial and inaction by Labor governments. When we were last in government, we proposed a number of amendments, amendments which I believe would have seen the scheme work and which would not have been as draconian on injured workers' rights as some of the things we are seeing in this bill and we have discussed in the last 24 hours.

We have seen it year after year. As I said, the current legislation has been in operation for 28 years. For 20 of those years it has been administered by Labor governments. For the whole term of this current government it has been blatantly obvious that this scheme was not working, yet it was not until just on 12 months ago that the then minister in sheer frustration uttered those famous words, 'The scheme is buggered.' The scheme has been buggered from day one, that is the cold hard reality, but 28 years of denial and inaction have cost workers and employers in this state a hell of a lot. If we look closely at what has gone on in this state as a result of this sort of mismanagement, we start to come to part of the answer to why manufacturing business in this state has disappeared.

During the 28 years of the operation of this piece of legislation, manufacturing in this state has flown, and I will not go through and name all the major businesses and would not even start to talk about the minor operators that have disappeared. This state used to be a proud manufacturing state, and that business underpinned our economy, but the operation of WorkCover in this state is one of the major reasons we no longer have many thousands of South Australians employed in the manufacturing sector.

I find it rather interesting that the member for Colton would make the comments he has just made. The original legislation was well founded and well intentioned. The member for Colton had the privilege of being the minister responsible for that legislation and, as I pointed out last night, he recognised the importance of early return to work way back in 2009. It is only in the last few months that we have seen any real attempt by the Labor government to do something about it. It has gone on for far too long and, as I said yesterday, I sincerely hope that this piece of legislation, and the management under this minister and the current CEO of WorkCover, sees a significant turnaround that delivers real benefits to both injured workers and employers because that is what we need in this state.

The only other thing I would say is that I hope that the minister, in his remarks in a few minutes, will say something to the house along the lines of, 'Whilst I remain the minister, if these changes don't deliver what we have promised, I won't wait for 28 years to fix it. I will come straight back to the parliament and seek to fix it immediately,' because that is what we have not had over the last 28 years.

The Hon. S.W. KEY (Ashford) (12:17): I should start by saying that my view with regard to workers compensation, health and safety is that this should be a role for the government, so I do not support the privatisation, the contracting out or the breaking down of the services for injured workers. We should have a no-fault pension scheme, and I am still of that view. The rot really began when we started bringing in the insurance companies. There are some very good insurance companies, and also some very good people from the insurance industry, but their obligation is to their shareholders not to injured workers and not particularly to employers. So, there is a conflict before we start.

Having been involved (and maybe I am being a bit precious about the discussions that happened in the early 1980s because I was actually involved in those discussions and negotiations, admittedly as a more junior trade union member), the real emphasis was on return to work. As I mentioned last night, it is interesting that this is called the Return to Work Bill. The issue of rehabilitation, training and retraining was certainly on the top of the agenda.

I was very sad that in the discussions we have had in the last few hours on this bill, other than being critical of rehabilitation (and certainly there is some criticism warranted), there does not seem to be any real emphasis on rehabilitation, training and retraining and people's vocational ability. I am really concerned that we will have a whole lot of injured workers in the future adding to the ones we have now, people with injuries and illnesses associated with their work, and basically there is no real emphasis on rehabilitation, training and retraining.

As a local member, many of the people who come in and see me about their workers compensation claim have issues to do with their case managers. If we are to have a new system, which it looks like everybody is supporting, then there needs to be some micromanagement looked at with regard to case managers. I have had constituents come in to see me who have been on WorkCover for, say, a year and they have had 10 case managers. They have had 10 case managers who do not have any particular background in the medical area.

These people, and I am sure there are some good ones but I only ever hear about the bad ones, make decisions about people's medical future, including whether they will have an operation or not or whether this operation is relevant to their WorkCover injury. Of course, there has to be some diligence and monitoring but to see the devastation as a result of that to injured workers and their families is very serious, in my view, and I hope the new system will address that really concerning issue.

I have had an opportunity, as an advocate, to work with case managers and people associated with WorkCover when it was a state government scheme and authority. I have also been able to compare that with the pre-1986 system where the insurance schemes were well and truly in dominance. Now, back to the future, I suppose, we had Employers Mutual for a while and now we have insurance schemes back into workers compensation as well, and I really do not think this has added to the system at all.

What I am really worried about is that we are going to have more and more people coming into our electorate offices who are in poverty because they cannot go back to work, for whatever reason, they are not eligible for the disability support pension, for whatever reason, and there are real problems in the household in trying to just live.

Recently, I had a constituent come into my electorate office who had a work injury that meant that his breathing, his respiratory system, was completely ruined—I was going to use an unparliamentary word, but anyway—so that he has real problems in breathing. Having watched my father die of emphysema, he had very similar symptoms, I have to say. He spends, through WorkCover, about $500 a month with regard to his pharmaceutical needs. He goes to see a psychologist twice a month. He has had about six operations in the last few years as well as going to see a specialist every two months.

What he is worried about is: what is going to happen to him when his two years are up (as of 1 July 2015)? Where is he going to go? He cannot work. What is his family going to do? He has four little children. What are they going to do? His wife is trying to keep ends together by working three jobs, but when the money goes, when the income goes, what is going to happen to him? I have had a discussion about this particular case and sent information to the Attorney-General because I am really worried about the future of this person, so I will be interested to see what the answer is.

Last night, we spent a lot of time talking about the misconduct of workers, and that is a reasonable thing for us to ensure, that workers do act appropriately while they are on workers compensation entitlements. I am just wondering what happens when employers do not behave, or other people in WorkCover do not behave. I am really hoping that, by transferring the WorkCover Ombudsman role to the state Ombudsman, there is going to be proper advocacy and support for workers, and maybe employers, who may not be able to have either an association or trade union representing them or a legal service that is available to them.

Again, I have inquired for different constituents about what their eligibility is for legal services and getting support from lawyers on either a no cost or a very low cost basis and it is very hard to negotiate. Quite often, they do have to employ lawyers and they do have to pay fees. There was also a question that I did not ask last night, and probably should have, about what will be happening with regard to representation and fees for workers and employers in disputes and appeal issues. I think this was one of the questions that the Law Society raised in their submission, that there seemed to be some changes in that area, as well.

As I said last night, having spent nearly five years as the Presiding Member of the Occupational Safety, Rehabilitation and Compensation Committee—the committee that needs to change its name—I am really concerned that the return-to-work recommendations that we made, which I think were on the mild side of recommendations, basically have been ignored by the government, so I find that very disappointing.

Anyway, we have to soldier on and I will be supporting the passage of this bill. I am obliged as a Labor Party member to support this bill and I take that responsibility very seriously. Despite some of the comments that were made by the member for Heysen yesterday, most of us take these issues very seriously and, quite frankly, if we do not have the numbers to achieve a particular point of view or a political action, then we have to cope with that. In this particular bill, there are a few of us who would like to see an alternative workers compensation system or an improvement on the one that we already have. I will be supporting this bill, but with great reluctance.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:26): Before I sprinkle the Attorney with a light dusting of praise for one paragraph in the bill, I have a few comments to make about the contribution he makes to the rest of it, and that will have a slightly different flavour. Can I start with what we agree on. On this side of the house, we value the significance and importance of work, the opportunity for people to participate and its enormous, not just economic but personal value in terms of financial independence and all the things that flow from a person having the opportunity to be in employment, whether in fact that is paid, full-time, part-time, volunteer or the like.

We understand the significance of that, so the title of this bill being changed to 'return to work' as distinct from covering and supporting a provision under WorkCover is an advance. It is something that we value on this side of the house and we applaud. The scepticism, as highlighted by the leader in his contributions, arises not only from promises the government has made in improving the identified debacle arising out of the financial mismanagement of this fund that they have made over the past 12 years that I have been here but also the advances of amendments that are going to turn that around and remedy that have fallen hollow. Of course, that is why he points out to the house that we are sceptical.

I have some other concerns as well. They include the recent conduct of the government in supporting their federal colleagues in programs such as the pink batts installation and the shameful consequences of that and the occupational health and safety risk to parties and, more recently, the government's decision to refuse to provide a reverse of onus of entitlement in respect of claims for certain cancers for the CFS workers. Most shamefully, the pretence of the government last year that they cared about the catastrophically injured people on the roads and the importance of providing them with lifetime support, coupled with a promise of refund and reduced registration for motorists, was the icing under which sat a poisonous cake, and that was the enormous impact that that had on the rights of people in motor vehicle accidents to have claims and the extraordinary number who now are no longer covered at all and those who are left, in some cases, without any access to compensation.

The government's performance in the time I have been here in actually caring for people who are injured, whether they are on a road or whether they are on a building site, and now in respect of the time that they might need to be rehabilitated or retrained for the purpose of employment, I think has been shameful. I do have a level of scepticism, possibly even higher than the leader's, as to how effective these promises are going to be.

The government has also operated in an envelope of secrecy during the entire development of this debate. We on this side of the house do not get to see the bill until it is tabled in the parliament; other stakeholders do. We are not consulted on what should be contributed, other than the fact that like the rest of the public we got a glossy pamphlet of an issues paper last year and an announcement during the election. We are not told anything in respect of how that might develop into being an effective reform for the purposes of making the whole process work and, of course, remain financially viable.

Possibly it will be a miracle if the government achieves what it set out to, but it will clearly be an enormous restriction to those who normally have access to support, both in the duration and the level of support that is given to injured workers, and of course the threshold or the test of compensability that will need to be achieved just to be able to get in the door.

We understand where the government is coming from in relation to reducing the pool, and the period for which somebody might get support, as being an effective means to reduce the total liability. However, it seems peculiar to me that self-insured operators and employers, and even some of the government's departments, have been able to manage WorkCover claims in an efficient manner for the purposes of being able to ensure that they retain a sustainable fund, and yet the government has comprehensively failed via the WorkCover Corporation in managing this scheme. I just find it inconsistent and the arguments presented inconceivable. However, some miracles do happen.

Finally, may I say in respect of the bonus scheme, where there may be a possibility of a refund being paid back to the levy payers, I support that. I think that would be an incentive for the employers to not only behave, provide safe employment places and the like, but I think it is scandalous that the government might use the profitability of a period of this fund as a means to transfer its obligation to support the very people it is going to cut off the fund to get back to work. That should be its responsibility and it is cost shifting that across at the expense of the levy payer. I think that is inequitable. It is unjust and I think that it is very sneaky of the government to try to pursue that.

Now let me address the one paragraph I do applaud the government on. It is clause 76 and it is the clause which provides for the retirement age to be linked with the federal social security definition. Obviously, in contemporary times, when there is an increase at the time at which one might be able to access pension entitlements, we need to change and so the government is right to introduce this into its legislation.

I place on the record my qualified praise of this, to the extent that I think the parliament here and state parliaments around the country must address the opportunity for mature-age people to continue in employment with reasonable support and protection under whatever workers compensation scheme we have, other than just medicals, which is the current state. This will allow there to be a movement with the federal retirement age being advanced in future years. However, it does not address the real issue and that is how do we enable people past the age of 60 or 65 to safely participate in employment—it may be part-time employment—and to be able to work longer, in the full knowledge that we are going to need to do that to meet our labour market requirements. We need to accommodate the increase in the pension age, as I have said, and we need to reduce the cost of ageing to our economy.

I might say that these topics are going to be the basis of a panel discussion at an October national meeting here in Adelaide. A convention will be held at our Convention Centre. It is the Leading Age Services Australia (LASA) national conference. I will be joining with Tony Jones and other eminent people such as Susan Ryan, a retired Labor minister from federal parliament, to deal with a number of these issues. I am proud to be part of that panel and I think it is important that we have that conversation because we need to address this.

What I have found in my lifetime in employment is that as one matures and sees older relatives or colleagues go into retirement, there is a cut-off and it is very important that we enable people past retirement age to be able to continue to participate, to remain financially independent as best they are able and to have opportunities for part-time employment but to have compensatable protection against the risk of injury in that workplace environment. Frankly, if we are ever to address the issue of a workforce, particularly in aged care, then we must address this issue.

It is incumbent, I think, on all state parliaments to get active in this space and to ensure that we make provision for that to occur. We already allow for people in such privileged positions as senior public servants and judges to continue in employment until age 70. In fact, the next bill we are about to consider will talk about making provision for the appointment of certain tribunal members to the age of 70 years. This happens, but it is only available to an elite and small group in the community. We are going to have to address this issue eventually.

I congratulate the Attorney on clause 76 which will at least contemporise the movement for the purpose of pension, but understand this: it is about 10 per cent of what we need to deal with in this important area.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (12:36): I thank all the people who have participated in the debate so far. About 20 minutes ago I was struck with a terrible apprehension that the member for Bragg was going to be overcome by a sense of graciousness and statesmanship, but I need not have worried; she has retained her normal spirit of bonhomie where I get a slap for everything, although she did credit me with one section out of 202. So something like 0.5 of 1 per cent of the effort that I and those who I have been working with have put into this has been recognised and found approval from the member for Bragg—which is 0.5 of a per cent better than we do normally. We are normally 100 per cent wrong, and the notion that any gracious or statesmanlike remark should pass her lips is anathema. Anyway, that is thank you, member for Bragg, for that small sprinkling of praise.

I would like to say a few things very briefly. First of all, as I said, thank you to all the members who participated in the conversation. I particularly thank (although I am not thanking unequivocally) the opposition and particularly the Leader of the Opposition who has shown statesmanship in respect of this matter by recognising that it is a matter of importance to all South Australians.

Thus far, subject to what might happen in another place, I would like to extend my personal thanks to the Leader of the Opposition and all members of the opposition for the cooperative way in which they have engaged in this matter, albeit that some moments were turgid and lengthy. Never mind, turgid and lengthy is better than uncooperative, so that is good. I trust and I hope, Leader of the Opposition, that when this goes to the other place a similar prevailing attitude of perhaps turgid but ultimately cooperative behaviour manifests itself.

This has been an enormous piece of work, with which I have been involved since January of last year when I became Minister for Industrial Relations. I do not think there is anything I have done in the time I have been in parliament or the ministry that has been so time-consuming and so demanding in terms of the detail and the balancing acts that are required to take a very difficult and complex situation, start from the ground and try to build it up. It is a very big task.

In that context I would like to say a few thankyous. First of all, I would like to thank Mr McCarthy (or Greg as I call him occasionally) and his team, and in particular Trudy, who has spent an enormous amount of time working on this. She has done a magnificent job. Trudy, thank you very much. I would like to also thank my personal staff, in particular, Jim Watson, Stephen Pinches, Erin Sneath and Kim Eldridge, who have been absolutely fantastic. They have worked extraordinary hours and have lived and breathed this thing for nearly two years. I thank them all. I am not trying to count my chickens, Leader of the Opposition, but if I do not thank them now, I will not get a chance, perhaps, so I am doing it now.

I would also like to thank all of the employers with whom we have had engagements. They have almost universally been constructive and measured engagements and the people involved have behaved, I think, in a very responsible way in terms of the conversations I have had with them, so I say thank you to all of them.

Can I also say thank you to the trade unions and employee representatives with whom we have engaged. Again, they have been dealing with very complex and difficult issues from the perspective of their membership. They have shown enormous maturity and a sense of—I use the word again—statesmanship in seeing this in the big picture, rather than taking what in some instances might have been the easy way out, which is to be very secular and not worry about the broader consideration.

I would like to thank a number of lawyers. I will not name them because I do not want to embarrass them, but they know who they are. They have been helping put input into this matter and, quite frankly, from the look of the email, they continue to be helpful, right to this day it would seem. I say to those lawyers: thank you very much. These are people who know a lot about it. Some of the comments coming from the more official legal channels, in particular the Law Society, are little more predictable and, consequently, a little less helpful but, nonetheless, I guess some of the things they have said have been worthwhile as well, although I am not sure I can put my mind to one of them presently.

I thank all of the members of parliament who have been involved in this matter. As I have said, to those opposite: my sincere wish is that when the matter comes to the other place, irrespective of what others might chuck in the air by way of chaff and confetti, the opposition continues the very constructive engagement it has had on this matter. I think the whole of South Australia will applaud the parliament for doing a good piece of work and they will also recognise that Her Majesty's Loyal Opposition is not always Her Majesty's loyal curmudgeon. When they see something which is actually beneficial to the community, they have the capacity to rise above the easy and the venal and actually become statesmen, and I congratulate them on that, assuming that is what you do, of course; and if you do not, I withdraw all those nice words.

The last point I want to make on this particular topic is this. Can I say to the WorkCover team, or the people who hopefully will soon be the return-to-work team, and to their leadership, Mr McCarthy down: if this bill passes, all of us—the opposition, the government and even perhaps the crossbenchers up there—are putting enormous faith in you. We are doing very hard policy work in this place, but we cannot manage the scheme. We can only set the rules. We can only set up the guidelines. We can only change the law. We cannot change how the scheme is administered and we cannot change how outcomes are delivered. That responsibility, if this passes, is going to be very heavily on the shoulders of that team.

I have said it before and I will say it again: I have very great confidence that Greg McCarthy and his team are just the people to deliver, but they need to know that the eyes of all of us, on both sides of this house, will be on the way they go about performing the tasks which the parliament, I believe, will soon be entrusting to them. I know that the Leader of the Opposition will be watching them, and I will be too. If they do a good job, as I expect they will, I think both the leader and I will be out there publicly applauding them, and, if they do not, we will be asking why. With those words, I trust that the bill will move swiftly through the rest of this place.

Bill read a third time and passed.