Return to Work (Weekly Payments Under Transitional Provisions) Amendment Bill

Introduction and First Reading

The Hon. J.A. DARLEY (16:24): Obtained leave and introduced a bill for an act to amend the Return to Work Act 2014. Read a first time.

Second Reading

The Hon. J.A. DARLEY (16:25): I move:

That this bill be now read a second time.

I rise today to introduce this very simple bill which will address what I hope is a loophole inadvertently created within the Return to Work Act 2014. The current act basically has the effect that, if a person was working on 30 June 2015, even if it was only for a few hours, they are completely ineligible to receive income support payments. If the same worker worked on 29 June 2015 but did not work on 30 June, that worker would be entitled to income support payments.

For example, if a worker was first injured on 29 or 30 June 2015 but they did not take time off work until 1 July 2015, they are not entitled to claim income support payments due to this provision. This may occur in circumstances where the worker does not want to leave their employer short-staffed and so will continue to work, notwithstanding the fact that they are injured. Alternatively, workers may not understand the extent of their injury and continue to work until they seek medical attention, which may be a few days after the initial injury. It is not uncommon for people to be injured at work but continue to finish their shift because they want to do the right thing by their employer and colleagues and do not know how badly they have been injured.

Similarly, take an injured worker who had continued working, despite ongoing incapacity, before 1 July 2015. If they later required medical treatment, including surgery, which rendered them incapacitated after 1 July 2015, they would not be entitled to claim income support for the time off required to recover from the treatment. Also, an injured worker who was on voluntary leave on 30 June and was not entitled to a weekly payment due to being on this leave, is not entitled to payments.

If a worker who previously had a compensable injury returns to work on a one day a week basis and happened to be working on 30 June, they are unable to receive weekly payments for the other four days they are unable to work due to the injury they suffered. This is clearly unfair. The whole object of the act is for people to return to work.

In the example given above, if the worker did not return to work and had stayed off work for all five days, they would continue to receive their weekly payments. However, a worker who tries to do the right thing and returns to work is penalised. Whilst this interpretation of the act has long been a suspected problem for those working within the system, the Full Bench of the Employment Tribunal recently affirmed those concerns, interpreting the provision to the detriment of workers who had in fact returned to work before 1 July 2015. On 28 April 2016, the Full Bench of the South Australian Employment Tribunal found, and I quote:

Clause 37(6) [of schedule 9 of the Return to Work Act] makes it plain that if a worker before the designated day was not in receipt of weekly payments and was not [then] entitled to receive weekly payments on account of a discontinuance under s 36 of the WR&C Act, that worker has no entitlement to weekly payments under cl 37 of the [Return to Work Act] or under the WR&C Act.

In that matter, the worker (Pennington) had, by no fault of her own, lost her employment days after the commencement of the Return to Work Act. Because she had been at work on 30 June 2015, and was earning more than her pre-injury earnings, she was denied access to the income support system, despite an ongoing incapacity to work arising out of an accepted work injury. If it were not for the wording of the loophole provision, she would have been able to avail herself of protection of the act.

I thank the Hon. Tammy Franks and her staff for working collaboratively on this bill, and for their assistance. We know she was equally concerned about this loophole and is supportive of having the matter addressed. I commend the bill to members.

Debate adjourned on motion of Hon. T.A. Franks.