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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-07-06 Daily Xml
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Motions

Return to Work Scheme

The Hon. C. BONAROS (16:35): I move:

1. That a select committee of the Legislative Council be established to inquire into and report on matters concerning the Return to Work SA scheme (the scheme) with particular reference to—

(a) the application of the Return to Work Act 2014;

(b) the management and administration of the scheme, including the operations of the ReturnToWorkSA board and case management policies;

(c) consideration of the approach of self-insured employers to management of the scheme;

(d) the effectiveness of the provisions relating to pure mental harm/psychiatric injuries under the Impairment Assessment Guidelines; and

(e) any other relevant matters.

2. That this council permits the select committee to authorise the disclosure or publication, as it sees fit, of any evidence or documents presented to the committee prior to such evidence being presented to the council.

I think we all know what this motion seeks to do. It was discussed at length yesterday during the debate on the return to work legislation. Obviously, many of us have raised concerns. Indeed, stakeholders—the legal profession, injured workers advocacy groups, the unions, the business sector—have all raised concerns about the way in which the government chose to deal with our return to work legislation.

One of the biggest criticisms and also, indeed, one of the biggest asks, I suppose, on behalf of those sectors was to have a review into our WorkCover scheme. There is absolutely no question that to date that has been the one thing that has been lacking.

I do note that we did have a legislative review into the scheme in 2018 and that a lot of discussion has also taken place about the recommendations in that review, which have not been implemented. We also know that there is a trigger in the bill, based on premiums, that would require a more formal review process to be undertaken.

In the context of the debates that we had and the marathon debate we had yesterday, and generally the way this debate has been handled over the past four weeks, this issue has come up time and again in relation to this systemic need for a review of the scheme as opposed to the short-term bandaid fixes that we have seen from successive governments.

I am not going to traverse what I said last night. I think that is already on the record and speaks for itself in terms of the way this government has handled this bill, other than to say that I guess the most disappointing part about that is, if we park politics for a moment—and that is where these debates really get messy, when we become so engrossed in the politics that we forget there are actually injured workers and very vulnerable people at the end of those schemes who suffer the consequences of what this parliament does.

The WorkCover system and ReturnToWork, however you want to phrase it, has been broken in this jurisdiction for a very long time. We had a marathon debate here in 2014—I think it was the longest recorded debate this chamber has ever had—in terms of the Rau reforms, which completely overhauled WorkCover. They were meant to fix the scheme. They did far from that. Nothing has been fixed.

We heard last year a very pointed warning from the then Treasurer and IR minister, Rob Lucas, about the fact that we were heading into exactly the same sort of scenario that we found ourselves in when those reforms came in when it comes to our liability and premiums and so forth. Again, what irks me in all of that is that none of us want to see businesses suffer but none of us actually focus on injured workers and the impacts that these schemes and these laws have on them.

The legal profession, in my view, has gone absolutely above and beyond in terms of telling us that every time we come here and do these bandaid fixes—and they are precisely what we do when we do policy on the run, when we introduce bills with a view to getting them passed in the same week, which is what the Premier did, when we pull those bills and replace them with another bill and do not consult with anybody—then all we are doing is creating legal uncertainty, increasing legal challenges, undermining the viability of the scheme and also impacting, usually respectively, the rights of injured workers in this state.

I do not know how many times we have to stand up in this place and say that until a government has the intestinal fortitude to say, 'Right, I think we actually need to sit down and address some of these issues properly, have a systemic review.' It is not going to cost this government anything to do that, have a systemic review, take into consideration all the feedback from the legal profession who deal with this issue day in day out—this is all they do—take into account the feedback that they give us about the failures of the bandaid fixes that we keep putting on these bills and have a review into this.

I am not by any stretch of the imagination suggesting that a select committee of this parliament is even the qualified vehicle to do that, but it is in the absence of anything else. Right now, we have a systemic review that is due to take place after the next election. That is the date that has been put on the commitment that was given by the Premier around a systemic review of WorkCover to take place in 2027.

I am not confident that we are going to see that before we start again with the legal challenges. I am very confident, though, that the reforms that we passed in this place yesterday are absolutely going to result in legal challenges, are absolutely, inevitably, going to result in unintended consequences, and I am not convinced by any stretch of the imagination either that they will meet the government's policy intent in terms of keeping premiums down.

Nobody wants to hurt business in this state, but by the same token we should also be equally concerned about the impact that we have on injured workers, and it concerns me greatly that they are always the last consideration, the afterthought in these debates. It is all about keeping business happy, saving political face, not having to concede to amendments, bowing to the pressure of the ReturnToWork board, which has not been subject to any scrutiny whatsoever in this entire process that we have just been through—absolutely none. I do note on that front that the Hon. Tammy Franks is seeking to move a bill, I think later today, that seeks to deal with some of those issues.

We do this and we completely ignore that at the other end of the decisions we are making there are real people, real mums, dads, sisters, brothers, aunties, uncles, friends, whatever the case may be, who are severely injured and impacted by the decisions we make, and we ignore the advice, especially that the legal profession gives us day in day out, about the actual implications that our actions in here have on those lives. That, to me, is completely unacceptable.

As I was saying, I am not suggesting by any stretch that we are the most qualified people to be looking at this but, if there is one thing I know and everybody else in here knows, if you want to shine a light on something that is working really badly, then a committee of this place is a pretty good place to start. Witnesses are usually pretty eager to come and give evidence to a committee about issues that impact them. I am hoping we will hear from not only the legal profession, advocacy groups and the unions but that we will hear from injured workers about the impacts these laws are having on them.

I think it is also really critical to hear from the self-insurers in this space. All the self-insurers I have spoken to have expressed not much of a concern around the changes that we have been debating, not because they are not severe in terms of their impacts but because, unlike ReturnToWork and unlike the way government agencies approach this issue, they operate their schemes in a commercially viable way. I bet every business sector in South Australia would absolutely love ReturnToWork to operate under the same sorts of rules, policies and protocols that the self-insurers sector operates under.

I think there are lots of businesses and government agencies that are probably relieved that they do operate under those schemes because ultimately they do not do anything to prolong a person's pain as much as possible, they do not do things that keep people unnecessarily tied to a scheme and they do not have policies of not offering redemptions—all criticisms that have been levelled at ReturnToWork. They make commercial decisions that are in their interests and that injured workers are happy to accept to get them off a scheme that does absolutely nothing in their interests.

I said it yesterday and I will say it again: the biggest joke around town in this place when it comes to ReturnToWork—and it is actually not a laughing matter—is that if you were not broken before you went into the system, you will certainly be broken by the time you come out. That is something that this parliament should be ashamed of in terms of its outcomes. I will note that, in terms of the terms of reference, I understand why these sectors were all calling for these bills to be postponed and for inquiries to take place before we actually dealt with these debates, but yesterday we really were faced with a Hobson's choice at best.

I do not know how the government could honestly stand where it is standing and say to us: 'We will either pass these reforms and hopefully we will agree to some of your amendments'—and I am very grateful for the amendments that they did agree to—'or we will let the challenges against the Summerfield decision proceed,' which would be absolutely crippling and devastating for injured workers and would see business premiums go over the 2 per cent mark—two really terrible outcomes if a bill did not pass.

So there was not a lot of choice in terms of us dealing with that bill yesterday. It certainly took away the ability for us to defer consideration of that bill. The numbers in this place between the two major parties took away that ability as well, but in light of the advice that we had, it made it very difficult for any of us to seriously contemplate deferring the passage of that bill until a later date, until after some form of appropriate review had been undertaken to consider the ramifications of what the government was going to proceed with.

That was not a choice; that was holding a gun to the heads of members of parliament and saying, 'Here are your two options: you either lose everything you want and businesses get an increase in premiums, or you pass a bill that's crappy and hopefully, if you're lucky, we might let you get some amendments through.' That is the choice that we had yesterday—no less, no more. That is terrible way to make laws in this place.

I have a lot of respect for our Attorney and so I hope he hears this loud and clearly: I sincerely hope that this government does not make a habit of passing laws in the way that they attempted to pass these return to work laws. If that is what we can expect for the next four years in government, it is going to be a busy four years, but by God they can expect more of what they have had for the last four weeks. That is not good for anybody. It is a pathetic and totally unacceptable way to make laws.

I think it is probably fair to point those comments more towards the Premier, even though it is the minister holding the baby. I will equally direct those comments to the Premier because we know that this Premier has a very different way of dealing with these sorts of issues than the former Premier. I like to say that he rules with an iron fist in terms of getting outcomes and results that he likes. That was certainly on full display over the past four weeks in the way that these debates took place in this place.

From where I sit, it is extremely disappointing. I think the government should be reminded that, from every onlooker who has watched this debate, and that includes the legal profession, that level of disappointment has been relayed to me more times than I can recall in the last four weeks. That is not a good way to be making laws.

I am not going to harp on about this; everybody knows what we are doing. But I will make one other point that I touched on yesterday, and that is the provision that relates to the effectiveness of the provisions relating to pure mental, psychiatric injuries under the Impairment Assessment Guidelines. If there was a real tragic outcome of the John Rau 2014 reforms, it was those that related to psychiatric injuries and the almost impossible thresholds that are set in terms of reaching those thresholds.

I am glad to see that we did not increase the threshold to 35 per cent. I think that was absolutely non-negotiable. I think it is absolutely critical that we focus on the way we treat pure psychological harm, especially, as I said yesterday, in today's environment and given the overtures that have been made by this government in relation to their commitment to dealing with mental illness across their policies as a government in an appropriate way, because we do the polar opposite in the way we treat people and their mental harm when it comes to the Return to Work scheme.

I am going to repeat it again because I think it is important: the advice I have from ReturnToWorkSA and from briefings we have had from the government is that in four years there have been just 10 cases that would have fallen within the bill that we considered yesterday.

Each year, there are only seven workers who actually manage to reach pure psychological harm impairment thresholds—seven in a year—and over four years there have been 10 injured workers who have managed to satisfy the provisions of that bill. Of those seven workers, we have had four who have managed to reach the 30 per cent to 35 per cent threshold and only three who ever made it over the 35 per cent threshold. It is inexplicable to me that we could set the threshold so high that somebody who has suffered pure psychological harm as a result of a work injury is unable to be appropriately compensated for that injury.

The terms of reference of the committee are broad enough to allow for participants in the scheme, including injured workers and their legal representatives, to share their experiences. Indeed, just this morning my office had a phone call already from an injured worker in despair, asking about the things that I had asked about last night in relation to the unilateral cancellation of appointments. She was in despair because she had received a phone call saying that her medicals had been pulled by her insurer last night, despite having scheduled medical appointments this morning.

They are the sorts of people with lived experience who are anxious about the reforms that we are making in this place who we need to be hearing from. We really need to get the ball rolling in terms of shining a light on ReturnToWork, some transparency around the way the board and its management and the scheme functions and operates or otherwise, and a select committee of inquiry by this place is certainly, I think, a very valuable first step in doing that.

The only other point I will make, which I will make reference to again—and I am just taking the opportunity to do that at this point—is that I do not want there to be any misunderstanding or question over where we stand in relation to the bill. If that is the case then I think I have serious questions to ask myself about the speeches that I give. Yesterday, there was a bit of a flurry in the chamber around the third reading of the bill.

Obviously, the numbers were such that we knew where the bill was going to land. I have already said that for me passing that bill was all about making what was a very terrible bill a better bill, a bill that we could live with, that was preserving the Summerfield decision and, indeed, ensuring that premiums do not go up for businesses at this stage. But by no stretch of the imagination should it have also sent any indication to anybody that overall SA-Best was supportive of that bill, because we were not. All we sought to do was to secure some amendments that made what I said was a terrible bill a better bill, but I will speak to that again a bit later.

With those words, I am urging all honourable members to support this inquiry, and I am hoping that it is absolutely a first step of many in terms of actually really scrutinising the Return to Work scheme in this jurisdiction, the management and administration of the scheme, the operations of the board, its cases and management policies, consideration of the approach that self-insurers take on this issue, the effectiveness of those provisions relating to pure mental harm, and anything else—and indeed the legislation itself as the overarching framework within which all that happens.

With those words, I commend the motion to the council and hope that it will be supported by all, just as it should be.

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (16:57): I will be very brief. The government will be supporting the honourable member's motion to establish a select committee. The government thinks it is appropriate to look at the application of the act and particularly the focus on the management and administration of the scheme to see if there are improvements that could be made.

Improvements in these things can do two things simultaneously: they can improve the outcome for injured workers and have the ability to simultaneously improve the financial performance of the scheme. If those improvements can be made as a result of this inquiry, of course that would be something that would be welcomed.

Particularly subparagraph (c), 'consideration of the approach of self-insured employers to the management scheme', is something that is worthy to look at. It is something that people with different views on either side of the debate compare it to. There may be things that can be learnt but it may be as well that in examining the operation of self-insured managed schemes it may dispel some ideas that the grass is always greener on the other side.

The Hon. C. Bonaros: It's not greener.

The Hon. K.J. MAHER: Well, that the operation is better on the other side in some respects. It would be, I think, a worthwhile thing to do, to compare how self-insurance schemes operate compared to the Return to Work scheme, to see if there are things that could be employed in the way the Return to Work scheme operates, but by the same token, it may also highlight some ways the Return to Work scheme operates that self-insurers could benefit from. We as the government support the motion to establish the committee.

The Hon. H.M. GIROLAMO (16:59): I rise today to speak on the motion on behalf of the opposition. This bill seems to be the gift that keeps on giving: two bills and one motion to form a committee, all within the space of a month. We all know that last night was a late one, so I will keep this brief. A common description of the formation and progress of this bill throughout the parliament has been 'shambolic and challenging', to say the least, but we will work through this as an opposition, speaking to the business community, crossbench and government.

As mentioned last night, after much consultation undertaken by the opposition with key stakeholders we have formed our position based on what we believe is the best way to support businesses and workers. There is a big task ahead for the government to keep their promises. Whilst the opposition supports the bill and most of the 50-plus amendments that went through last night, we believe, for a variety of reasons, that a committee is the logical next step to make sure neither businesses nor workers are left behind in a worse position than they were before.

As I said in my speech yesterday, we need to make sure that the government supports the business community, which is already facing many challenges, supports workers who find themselves injured in workplace accidents, engages with lawyers who work on behalf of injured workers, ensures that the changes to the whole person impairment rate from 30 to 35 per cent does not create greater issues for workers, guarantees that the average premium rate for 2023-24 will not exceed 1.9 per cent, and continues assessments of the scheme's financials by actuaries.

As I have already mentioned, we have spent a lot of time consulting with key stakeholders over the last few weeks to make sure we are supporting those communities and businesses. Whilst the business community overall supports these amendments, the committee presents an opportunity to hold the government to account and to make sure that going forward there are not hikes in premiums and unfair disadvantage for employees. With the introduction of the second bill, the government told unions and the business community to trust them. It is now up to the government to manage the implementation and outcomes of the bill.

A committee is a great way for the parliament to monitor and provide ongoing recommendations and support to this important area and to hold the government to account. The opposition supports the establishment of a select committee of representatives from the Legislative Council to inquire into and report on matters concerning the Return to Work scheme.

The Hon. R.A. SIMMS (17:02): I rise to speak very briefly on behalf of the Greens and my colleague the Hon. Tammy Franks to indicate our support for the select committee to inquire into the Return to Work scheme. I do not wish to reventilate the arguments that have been made by my colleague, but I do wish to highlight for members' benefit the work of the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation's inquiry into the Return to Work Act and the Return to Work scheme, which tabled its final report at the end of 2017.

There were 18 recommendations as part of that report, which have largely remained untouched. In particular, the committee highlighted the important work of early intervention and we hope the new inquiry will look at these matters. We also hope the inquiry will look at how the scheme can be made more accessible for injured workers and fairer for them.

We are pleased to note that in particular this inquiry has in its terms of reference consideration of the way provisions relating to mental harm and psychiatric injuries function. We believe that is an important consideration. Fundamentally, for us, we believe that this is a very important examination of this scheme and the Greens are happy to support it.

The Hon. C. BONAROS (17:03): I thank the Attorney and Minister for Industrial Relations, the Hon. Heidi Girolamo and the Hon. Rob Simms for their remarks, and indeed for the chamber's support for this very important motion. I look forward to its good work.

Motion carried.

The Hon. C. BONAROS (17:04): I move:

That the select committee consist of the Hon Heidi Girolamo, the Hon. Emily Bourke, the Hon. Irene Pnevmatikos, the Hon. Nicola Centofanti and the mover.

Motion carried.

The Hon. C. BONAROS: I move:

That the committee have power to send for persons, papers and records, to adjourn from place to place and to report on 30 November 2022.

Motion carried.

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