05th March 2024 02:29pm
Victorian Legislative Council, Melbourne

David ETTERSHANK (Western Metropolitan) (14:28): 

I rise to make a brief contribution on the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Bill 2023, and I state from the outset that Legalise Cannabis Victoria cannot support this bill in its current form. The government has been talking about the urgency of passing this bill, that it is the only way to ensure the financial sustainability of the WorkCover scheme so that the Victorian government can, and I quote the minister here:

… continue to support positive outcomes for Victorian workers into the future.

When this bill was before the Assembly, the Minister for WorkSafe and the TAC pleaded that any delay in implementing the bill would be catastrophic, that the scheme would collapse, that Victoria would be left without a workers compensation scheme.

The scheme has evidently been in trouble for a long time, most likely the entirety of this government’s current tenure, which makes it all the more unfathomable that the government has not done the necessary work to consult and compromise and develop a bill that would actually support positive outcomes for Victorians into the future.

Instead we have a bill that shifts the government’s failure to address the problems with the WorkCover scheme back onto injured workers, their families and our already strained mental health sector.

It is a sad, sad day when we see a Labor government abandon thousands of workers with mental health injuries. While we can all recognise the dire financial constraints on the government, we should not be calling upon vulnerable workers to pay the price.

This bill is half baked and ill considered. Despite the government spruiking its many months of consultation between business, unions and stakeholders when it introduced the bill, a common, and I would say almost unanimous, theme amongst the workers, the unions and the business groups – everyone who gave evidence at the recent inquiry into this bill, from the head of Trades Hall to the Victorian Chamber of Commerce and Industry and the Australian Industry Group – was the degree to which the government failed to consult anyone on the development and the outcomes of this bill.

Had they done so, the government might have come up with something better, because, to quote Victorian Trades Hall Council secretary Luke Hilakari:

“… business and unions are highly aligned about what would fix this Bill or what would fix the problem.”

I would even go so far as to say that it was rather weird that in the committee Mr Hilakari described the bill as ‘a dog’s breakfast’ while Mr Guerra from VCCI described it as a ‘dead cat’. Notwithstanding the sensitivities of my friend from the Animal Justice Party to an excessive number of animal-based analogies, both Mr Guerra and Mr Hilakari agreed that there had been some consultation prior to the drafting of the bill but none either during or after the drafting.

This bill has created a historic unity between employer and employee peak bodies.

In short, both sides of the labour divide agree that this is an atrociously executed bill, and it enjoys no confidence from either party. Accordingly, it is no surprise that the number one recommendation of the bill inquiry is:

That the Victorian Government conducts urgent and meaningful consultation with stakeholders, with the Bill proceeding after consultation is completed.

The Government should table a consultation report in the Parliament prior to the Bill proceeding.

The government has ignored that and other recommendations of the inquiry, choosing instead to make a deal with the opposition, those well-known champions of workers rights, to get this bill passed.

Make no mistake, this bill will not fix the underlying problems with WorkCover, but it will see workers with mental health injuries worse off, some of whom will certainly be forced into poverty.

Furthermore, we are likely to see more workers with mental health injuries accessing the scheme while we wait for the government to finalise the psychosocial health regulations that were expected to commence in 2022.

The regulations are supposed to guide employers on how to identify and control risks to protect workers from mental injury and include a monitoring and reporting regime.

These regulations, the draft of which I have been told by experts in the field are very good by the way, will require employers to identify psychosocial hazards.

These hazards include but are not limited to bullying, sexual harassment, aggression or violence and exposure to traumatic events or content, and that is just the beginning of the list. And if mental health related claims are a growing issue, these will be an invaluable tool in assessing the context in which an injury has occurred.

They would make workplaces safer and improve the operation of WorkCover by putting preventative measures in place that could help stem the tide of mental health injury claims in our workplaces, but in their absence what is to stop an employer from saying, ‘Well, there are no regulations, so we don’t have to do anything’?

It is a sad, sad indictment that the Victoria was the first state, and this government was the first state government, to commit to developing and implementing these regulations but we are now the only state not to have implemented them.

All of the other states have psychosocial regulations, except for Victoria. So when will we see them?

That is a good question, because it was a question I asked on 21 February when I put the question to Minister Pearson asking when we can expect these regulations to be released, and I would like to thank the minister for his speedy response, but I note that that response contained no hint whatsoever as to when these regs might actually be in place.

Another commitment that is lost somewhere between a great media release and reality is the much-vaunted Return to Work Victoria.

According to a media release in May 2023 from then Premier Daniel Andrews and the now Minister for WorkSafe and the TAC Danny Pearson,

Return to Work Victoria will:

… help people get back into the workforce as part of new reforms to ensure Victoria’s WorkCover scheme is sustainable and fit-for-purpose.

Return to Work Victoria, with input from employers, unions, mental health and occupational health experts, will pilot supports for injured Victorians and those experiencing work related mental stress to return to work or training pathways.

Stakeholders all agree that returning to work is critical to reducing long-term absence and claims. The Australian Psychological Society has stated that:

The introduction of initiatives for prevention and identification of early signs of stress via Return to Work Victoria is … constructive and could lead to a reduction in future claims for bullying, harassment and other psychological injury.

This reality is also reflected in that same media release when they state:

Health outcomes for workers are worse the longer they remain on WorkCover, and can lead to prolonged injury and unemployment – the longer a person is away from work, the less likely they are to ever return.

Sounds great. There is obviously a meeting of the minds here.

Get Return to Work Victoria up and running to reduce long-term absence in the context, hopefully, of the psychosocial regulations to provide a sound base to underpin that, and then obviously you would implement reforms to the scheme – a perfectly logical, sequential process. The problem is nobody – but nobody – can tell us anything whatsoever about Return to Work Victoria.

Does it exist? No. Do we know when it will exist? No. Does it have a budget allocation? No. Does it have any enabling legislation in the works? No idea. Is there an operational or a governance model? No.

There are a number of quotes at the end of this media release, and the one attributed to Minister Pearson says it all:

“We’re modernising the WorkCover Scheme and establishing Return to Work Victoria, so that no injured worker is left behind.”

Admirable! He is right – for workers with sustained mental health injuries, under this legislation they will not be left behind. They will be kicked to the kerb and left to fend for themselves.

Let us move on to some of the more egregious provisions in this bill. We will start with definitions. The proposed definition of ‘mental injury’ is too narrow and does not reflect how practitioners in the mental health and wellbeing sector understand mental health conditions.

In particular, the reliance on diagnoses under the diagnostic and statistical manual, the DSM, is very problematic, and bear in mind that the measurement – the quantification – of impairment is a critical factor at multiple points in this bill and the journey of injured workers to enter, to progress and to potentially be ejected from the WorkCover system.

We know that WorkSafe Victoria utilises the American Medical Association guidelines to determine an impairment – AMA edition number 4. In assessing impairments, those very guidelines state:

It must be emphasised and clearly understood that impairment percentages derived according to the Guides criteria should not be used to make direct financial awards or direct estimates of disabilities.

They should not be used to make that assessment, so how can the government possibly be using these guides to determine whole-person injuries, when that is exactly what those guidelines themselves say they should not be used for?

Then there are the changes to the initial eligibility for WorkCover, which rule out work-related stress and burnout as compensable if these are considered to be usual or typical and reasonably expected to occur in the course of the worker’s duties, unless the injury is predominantly caused by traumatic events that are reasonably expected to occur in the course of their duties.

So that would appear to protect one class of worker – let us say someone who signs up for a job where they can expect traumatic events to occur. I want to come back to that, and I think we will certainly come back to that in committee, because this is a highly problematic area. But it does not, for example, cover someone who has been exposed to unreasonable stress or insane workloads and suffers burnout.

That is terrible. That is a terrible exemption.

Does that mean that the onus is entirely on the worker to manage the degree of stress and burnout they are exposed to at work?

Does it mean that WorkSafe will no longer prioritise complaints from workers injured by workplace hazards such as overwork and burnout because they will no longer be compensable?

It certainly looks that way. If only we had a set of psychosocial regulations that were designed to remove those sorts of hazards – that would be useful. But they are not there.

On top of that, there is a very good chance that these new eligibility requirements will fall hardest on women workers, who are statistically more likely to be diagnosed with stress and anxiety conditions and more likely to work in industries where these kinds of work hazards are more prevalent.

Fun fact: under the Victorian Gender Equality Act introduced by this government in 2020, the Victorian WorkCover Authority, which is a defined entity under that act, is required to produce a gender impact assessment when developing or reviewing any policy, program or service that has a direct and significant impact on the public.

I have not been able to find that assessment so far, but I imagine it will turn up sooner or later, maybe with those legendary psychosocial regulations that we will all be so keen to see.

Moving on, clause 16 of this bill introduces an impairment threshold to assess a workers eligibility to continue receiving compensation beyond 130 weeks. New section 167A defines a workers degree of impairment, and it states that:

The degree of impairment of a worker is the greater of the worker’s –

(a) degree of impairment resulting from one or more compensable injuries that are physical injuries; or

(b) degree of impairment resulting from one or more compensable injuries that are psychiatric or psychological injuries.

Effectively, a worker can only be assessed for one type of injury, either physical or mental; you cannot have both.

This is ridiculous. People cannot leave their psyche at home in safe storage while they are exposed to the workplace. When they head off to work, there is a reality that is the whole of that person.

Obviously traumatic physical injuries can and do lead to substantial and ongoing mental injuries. This is, if you will pardon the pun, a no-brainer.

There is also a staggeringly bizarre use of terms here that I would like to reflect on briefly. The bill repeatedly uses the term ‘whole-person impairment’, WPI. Let us give that its plain English meaning: it is referring to the whole of the person, their totality.

But when it is time to assess that whole person impairment, the bill says that you can assess either their physical injury or their mental injury but not both, not the whole person.

This bill is cruel. It is a moronic piece of legislation constructed entirely on an oxymoron. If a worker is injured at work, leaving them with physical injuries as well as mental injuries associated with the trauma of the incident, we are asking that worker to pick one even though their mental health injury occurred as a result of, for example, their physical injury and even if combined their injuries would far exceed the 20 per cent threshold.

It is nonsensical, and it is out of step with contemporary medical practice.

Workplace injury lawyers have informed us that the threshold for physical impairment alone is staggeringly high, almost impossible to meet.

To give you a good example of how difficult it is to meet the 20 per cent impairment for psychiatric or psychological injuries, I would like to quote Luke Hilakari, who shared this case at the recent WorkCover bill inquiry. Be warned, this is a very disturbing example.

I quote from his evidence:

So what type of people are we talking about missing out? A recent good example would be of a 33-year-old emergency services worker – I will let you guess which emergency service they worked for – who had been employed by the service for 14 years … He had witnessed multiple traumatic events, and then one day he presented at a car accident.

He saw that a kid had been decapitated and another kid had been crushed to death. That worker got diagnosed with severe PTSD, now regularly sees a psychiatrist, has suicidal thoughts, cannot leave the house, is on medication and his mum had to move back into the home to look after his kids.

That worker got a whole-person impairment of 15 per cent. If that worker could not reach the proposed threshold of a 20 per cent whole-person impairment for his psychological injuries, it is hard to imagine how anyone could.

Let us face it: the inability to reach those impairment thresholds is exactly the cruel intention of this bill. The government talks about, for example, that WorkCover is ‘fundamentally broken’. But what is the remedy? To effectively preclude injured workers with mental health injuries from eligibility under the scheme.

Is that really how you fix a fundamentally broken scheme?

There are many problems with this bill that I know other speakers will address. I want to finish up by reiterating what a sad set of circumstances we have before us.

The WorkCover scheme has been underfunded for years, including by this government. There have been a number of reviews, including two by the Victorian Ombudsman, with recommendations on how the scheme could be improved.

It seems the government has ignored these recommendations. We understand that the increase in mental health claims was not something that was envisaged when the scheme was first introduced, but it cannot be fixed by dividing workers into the deserving and the undeserving. It is interesting that during the bill inquiry we learned that mental health claims are predominantly coming from the public sector, with teachers and police having the highest proportion of mental health injury claims.

The government really needs to be working with its own departments if it wants to reduce the number of mental health injury claims that are supposedly bankrupting the WorkCover scheme.

What we need is a scheme that focuses on prevention and rehabilitation. We understand that the scheme needs to be reformed and modernised, but the sustainability of WorkCover cannot be at the expense of workers struggling to deal with the totality of injuries that leaves them unable to work.

This bill needs to be scrapped and redeveloped after proper consultation with workers, with their unions and with employers, all of whom have called for systemic reform. We need a workers compensation scheme that sees people in their totality and compensates them accordingly, not this regressive bill that fails injured workers and their families and pushes the burden of their care onto an already overstretched health and mental health sector.


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