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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-08-27 Daily Xml
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Bills

Return to Work (Employment and Progressive Injuries) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 June 2024.)

The Hon. H.M. GIROLAMO (15:48): Today, I rise on the Return to Work (Employment and Progressive Injuries) Amendment Bill, introduced by the Attorney-General. During the debate on the Return to Work (Scheme Sustainability) Amendment Bill in 2022 the government acknowledged the need for some further reforms, particularly concerning section 18 of the Return to Work Act, to address any potential disadvantages faced by workers suffering from work-related dust diseases and terminal illnesses.

This bill before us today is in direct response to those commitments. Section 18 of the Return to Work Act outlines an employer's duty to provide suitable employment to an injured worker who is unable to return to work. However, in the current legislation there is a gap that could potentially result in unfair outcomes for injured workers. If a dispute arises over an employer's obligation to provide suitable employment, the South Australian Employment Tribunal (SAET) can resolve the dispute. However, any orders made by the tribunal only apply moving forward, with no compensation available for the loss endured by the injured worker during the months of dispute resolution.

This bill introduces a new subsection 18(5e), which empowers the tribunal to order an employer to compensate an injured worker for wages or salaries they would have received had suitable employment been provided from the outset. This is a critical amendment that addresses the financial hardship potentially faced by workers during lengthy dispute resolutions, ensuring they are not left without income through no fault of their own.

Additionally, the bill amends the responsibilities of self-insured groups. With section 18(16d) the duty to provide suitable employment now applies across the entire self-insured group, not just the pre-injury employer. This ensures that larger self-insured organisations take responsibility for ensuring employment opportunities for injured workers. Section 18(5c) further enables SAET to determine where within a self-insured group a worker should be placed, promoting a more flexible and fair approach to re-employment.

This bill also addresses the challenges faced by workers with dust diseases and terminal illnesses. Currently, a work injury must be stabilised before a permanent impairment assessment can be conducted. This assessment is critical for determining the worker's degree of whole person impairment.

The bill also allows workers with prescribed dust diseases to elect which employment history is used to calculate their average weekly earnings. This amendment ensures that workers with a higher paying job at that time are not financially disadvantaged when their compensation is calculated.

Throughout the development of this bill, the opposition has engaged in thorough consultation with various stakeholders, including the South Australian Business Chamber and the Motor Trade Association as well as officials from ReturnToWorkSA, to assure the opposition that the amendments will not negatively impact the scheme's sustainability or the rate paid by businesses in South Australia. ReturnToWorkSA did confirm that they do not foresee that this will increase the rates paid. I hope that is the case. Based on these consultations, we believe these amendments are appropriate to ensure that our Return to Work system is equitable and supportive of all South Australian workers and employers.

The Hon. T.A. FRANKS (15:51): I rise on behalf of the Greens to speak in support of the Return to Work (Employment and Progressive Injuries) Amendment Bill 2024. This bill will ensure that workers are able to return to work after an injury and ensure that what is in the best interests of the South Australian community is continued.

I do, however, take this opportunity to note concerns from stakeholder groups and from the Greens regarding the effectiveness of certain processes under the Return to Work Act. Section 18 refers to an employer's duty to provide suitable employment, insofar as reasonably practicable. Regardless of an injured worker's income support or what their role may have been before, employers should be obliged to help the worker return to the workplace. A scheme which supports a return to the workforce results in better outcomes for injured workers and reduces scheme costs to relieve employers. The Greens believe that a fair and comprehensive workers' rights compensation scheme is essential to protect workers. These amendments will ensure that no worker is cast aside or left behind and can better re-enter or assimilate back into the workforce.

The Greens have for a long time campaigned for worker protections with regard to crystalline silica dust, and we have finally seen engineered stone banned at a federal level and, through regulations, at a state level. We welcome that. However, as we know from this horrible disease, the symptoms of silicosis can appear many years after exposure. In some cases, workers have been exposed for decades before they become debilitated by their illness. In these instances, workers can be subject to unfair earnings calculations, as they may be earning less than when they were exposed.

Amendments in the bill will now allow a worker with a prescribed dust disease, such as silicosis or others, to opt for fairer income supports and elect whether their former or current employment is used for calculating their average weekly earnings. This bill also imposes obligations on self-insured employers, such as BHP or Woolworths, and the state government to affirm that where a worker is injured working for a self-insured group they have a duty to provide suitable employment across their business. The Greens welcome these changes, which ensure workers' rights are protected and injured workers are supported in their transition back into work. With that, I commend the bill.

The Hon. S.L. GAME (15:54): I rise briefly to support the Return to Work (Employment and Progressive Injuries) Amendment Bill. There is an ongoing need to strike the right balance between the interests of workers and the interests of employers when an injured worker returns to work. These reforms aim to improve the operation of an employer's duty to provide suitable employment for an injured worker under section 18 of the act. This is essential to the fair treatment of injured workers.

I do share the concern of stakeholders regarding the technicality and complexity of this legislation and the requirements for effective dispute resolution. I understand the purpose of these amendments is to address some of these issues.

I appreciate the employee absence from the workplace combined with an adversarial process is not conducive to an effective return to work. Engaging the parties in discussions during the initial stages of the process is an effective measure for dispute resolution and will encourage valuable early negotiation of suitable employment options. Both parties are required to meet their reasonable obligations in this early stage of the process and if an agreement cannot be reached there is still time to resolve the matters before the dispute escalates and reaches the Employment Tribunal.

Most of these proposed amendments are uncontroversial and useful; however, I am concerned about the increasing complexity of these proceedings and the potential increase in section 18 applications due to the options available to employees seeking to litigate against an employer.

The Hon. C. BONAROS (15:55): I rise very briefly to speak in support of the Return to Work (Employment and Progressive Injuries) Amendment Bill and to echo the sentiments expressed in this place by other members, in particular the Hon. Tammy Franks in relation to the issues that she has highlighted, and to commend the Attorney for seeing through the commitments that he gave during the last round of reforms that we undertook in this place.

We took him at his word at the time that we would be here implementing those very important changes. All the discussions that I have had with stakeholders and individuals involved have been positive. The government has picked up on those issues that were raised during that very long and heated and contentious debate on return to work. So I commend the Attorney in particular, in his capacity as Attorney and industrial relations minister, for keeping his commitment and for implementing these very critical and crucial reforms. With those words, I support the second reading of the bill.

The Hon. M. EL DANNAWI (15:56): I rise today to speak in support of the Return to Work (Employment and Progressive Injuries) Amendment Bill. To say that the Return to Work scheme is complicated might be an understatement. It is no secret that people who have lived experience with the scheme have long advocated for it to be clarified. This government is responding to those calls and will seek to remedy some of the scheme's various shortcomings, particularly with regard to section 18.

Today, I will touch on some of the amendments that will achieve this. Section 18 of the Return to Work Act deals with the employer's duty to provide work to an injured worker. It is an important part of this act which, as the name suggests, is intended to help injured workers re-enter the workplace. As the Attorney-General said in his second reading explanation, unless they are seriously injured, most workers' support entitlements will only last for two years. Under this model, it is essential that there be a tangible pathway back into the workforce.

Section 18 is a part of the act that has been subject to much confusion, frustration and critique as to how it is to achieve this goal. This bill creates provisions that will make it harder for an employer to dodge their responsibility to find suitable work for an injured worker. One way this will be achieved is through making sure that every employer within a self-insured employer group comprised of related bodies corporate can be found to bear the obligations imposed on the employer under section 18.

Currently, a large group of self-insured employers can potentially avoid providing suitable employment to injured workers despite having the means to do so. This amendment will ensure that where a employer is part of a larger body corporate the responsibility to find work is not limited to the nominated workplace. The bill will still maintain, however, that this only applies where there is no suitable work available at the pre-injury employer.

This bill also contains amendments to deal with the application of section 18 to sectors with a high use of labour hire employment, inserting provisions requiring host employers to cooperate with labour hire providers in relation to return-to-work matters. The bill introduces amendments to give the tribunal the power when making a section 18 order to also order the employer to make a payment to the injured worker for the wages or salary they would have received if the suitable employment had been provided.

Currently, the tribunal can only make prospective orders. This is simply not suitable, particularly when you consider the amount of time that it can take to resolve a dispute. These amendments, in addition to being fair, create a financial disincentive for employers who contravene their obligations under section 18.

Beyond section 18 this bill provides much-needed clarity in the area of permanent impairment assessment. This assessment is crucial. The findings from this assessment will ultimately determine the worker's entitlement to lump sum compensation and access to other benefits such as serious injury status and common law. Before the assessment may be performed the act states that the worker's condition must have stabilised. We cannot afford ambiguity in such an important provision. That is why this bill includes a clear definition of 'stabilised'. The definition is consistent both with personal injury law and the impairment assessment guidelines.

The bill also provides exceptions to the stabilisation requirement for injured workers with terminal illnesses and prescribed conditions. These exceptions ensure those workers can undergo an assessment and access the entitlements that flow from that process. These are just some of the amendments covered in this bill. As it stands, the current act has seen far too many unfair and in some cases inhumane results for injured workers. All the amendments in this bill, including the ones I did not touch on today, will have a real effect on the lives of these workers and their families, but we still have more work to do.

As many in this place will know, I took the place of my predecessor, the Hon. Irene Pnevmatikos, on the Select Committee on the Return To Work SA Scheme, and I would like to take a moment to acknowledge her contributions to this area. Although I was not there for the entire duration of the committee, the things that I have learned and the stories that I have heard as a part of that committee make me very pleased to see this bill before the parliament today.

The value that we place on a person's ability to work is massive. In a society where your ability to work determines so much—your sense of self-worth, your earnings potential and your standard of living—losing your ability to do that work, whether in the short term or the long term, has huge consequences.

The function of this legislation has the potential to have a lasting impact on someone's entire life. Whether that impact is positive or negative depends in no small part on what is done in this place. To leave workers out in the cold over a workplace injury that is not their fault, is an accident or is the result of a twist of fate is not fair and not right. This scheme is about people's lives. They deserve a scheme that works. I commend the bill to the council.

The Hon. E.S. BOURKE (16:02): The Malinauskas government is committed to reforming our workers compensation scheme, and this bill delivers necessary changes that will make the Return to Work scheme fairer for injured workers in our state. The government has listened to advocates who know the system's landscape, including unions, employers, ReturnToWorkSA, members of the legal profession and workers themselves.

The reforms proposed by this bill have been long called for and include making it easier for injured workers to return to work by improving communication between workers and employers about suitable employment options after an injury. The bill also aims to make the system fairer for victims of dust diseases and terminal illnesses, a group of people who have for far too long been fighting for justice.

One must appreciate the grave seriousness of industrial dust diseases and other terminal illnesses that can arise from the performance of work duties and the uniquely terrible position that affected workers and their families can find themselves in. I believe that anyone who knows someone who has been so affected will understand the need for these reforms.

Asbestosis still remains a menace in too many ways in our community. There are still hundreds of new cases of diseases arising from exposure to asbestos being diagnosed each year. Our government's ban on engineered stone products will protect workers from contracting fatal lung disease and exposure to silica from becoming the next dust disease epidemic.

As many members have mentioned, including the Hon. Tammy Franks, under the existing provisions of the Return to Work Act a worker's level of income support is calculated based on their earnings at the time of exposure to dust. This is problematic, because as we know with lung disease it is usually years or decades between the time of exposure and the development of the disease, by which time they may well be earning significantly more or less than they were at the time of the exposure.

The amendments to this bill will allow a worker to choose their employment for the purpose of calculating income support: either the employment they were in at the time they ceased work due to illness or their employment at the time of exposure. This will ensure the financial loss they experience is reflected more fairly. Ensuring fair compensation is the absolute minimum that we can do to deliver justice for affected workers and their families.

The other main reform of this bill is to strengthen the employer's duty to support workers returning after injury by providing them, so far as it is reasonably possible and practical, with suitable employment. This duty is particularly important in supporting individuals who may not reach the seriously injured threshold but nonetheless continue to be affected by a degree of not being able to return to work and provide support for their family.

Workers who fall into that group, not necessarily injured but with an ongoing impacted capacity, both need and deserve to be suitably accommodated. It reduces financial impost on the scheme and the taxpayer, it helps to bring down employer premiums and it ensures that those people who are able to work can enjoy the benefits of work in a safe and a suitable way. If it is done correctly, reinjury will be reduced, workers will be gainfully employed and will benefit from the dignity that work actually provides.

I have been fortunate to be a member of the Select Committee on Return to Work SA Scheme, as many others in this chamber have been. The committee has received a range of submissions and heard evidence from a range of witnesses, including the SDA union. The committee has heard, as we have heard consistently from our state's unions over a number of years, that the duty of employers to provide suitable work for persons who are seeking to return to work is not operating as effectively as it should be.

In relation to the roadblocks that the SDA has experienced with section 18 of the act, the select committee heard of blanket refusals by employers to provide suitable employment, or suitable employment is provided while an injured worker is on the scheme and receiving income maintenance but once they cease to be entitled to that they are thrown onto the scrap heap, as quoted in the committee, or what an employer deems to be suitable employment is meaningless and demeaning work that has not been of any benefit to the employee.

As we have mentioned many times throughout this debate, this is not just in the best interests of workers who we are raising these concerns for, it is in the interests of taxpayers, it is in the interests of our community and it is in the interests of having an effective scheme that will last for many years to come. I commend the bill to the chamber.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:07): I wish to thank all speakers on this bill and thank them for their indication of support on this important bill which, as has been mentioned in the second reading debate, stems from some things that we looked at when we last touched upon the Return to Work scheme in this place. With that, I commend the bill to the chamber and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. H.M. GIROLAMO: Can I ask the Attorney: are you able to guarantee that these changes will not result in an increase in Return to Work premiums for South Australian businesses?

The Hon. K.J. MAHER: I thank the honourable member for her question. There is no reason this should have any ability to increase premiums and, because this is about returning people to work, if there is a pressure on premiums it should be downwards.

The Hon. H.M. GIROLAMO: In regard to what forecasting ReturnToWork has done as a result of these changes, are there any actuarial reports or anything that can be tabled in regard to the changes that are being proposed?

The Hon. K.J. MAHER: I thank the honourable member for her question. My advice is that this does not affect the scheme costs in terms of ReturnToWork. This is, in fact, about returning people to work so, if it does anything, it should put downward pressure on the scheme. So, no, there are not actuarial reports.

The Hon. H.M. GIROLAMO: I hope that is correct, thank you. In regard to the changes, how do you foresee the changes to SAET working—the changes that are happening with SAET? Are they appropriately resourced to be able to cover those changes?

The Hon. K.J. MAHER: I thank the honourable member for her question. It is a good question and we certainly have consulted closely with SAET on these changes, as we do for any changes that may affect what comes before their jurisdiction, and they are appropriately resourced for any of the changes that occur in this legislation.

The Hon. C. BONAROS: Just on from the question asked by the honourable member, can the Attorney confirm that ReturnToWork has indeed provided advice to members that clarifies that this is supposed to create that level playing field by making cost provisions fairer for employers?

The Hon. K.J. MAHER: I thank the honourable member for her question. Yes, I can confirm that that is my advice.

Clause passed.

Remaining clauses (2 to 13), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:12): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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