Legislative Council Wednesday 16 August 2017
Ms FORREST (Murchison ) - Thank you, Madam Acting President.
I will not go over all the matters the member for Rumney raised, particularly her comments regarding the difficulty in understanding what is the best way forward with this bill.
I consulted some time ago with people who are actively engaged in this area in terms of dealing with workers' rehabilitation and compensation claims. In my view, it is about keeping lawyers out of it as much as we can because that is where the costs and all the - sometimes - challenges lie.
We need a good system that is streamlined and free from unnecessary red tape. Obviously, some red tape is important, but it is not really red tape, it is regulation that facilitates an important process here. When a worker is injured at work, there needs to be an appropriate framework to deal with that. None of us expects to be injured at work, none of us wants to get the phone call to say a loved one has been injured at work. Obviously, a serious injury or death is an absolutely tragic outcome. WorkCover has done a lot to promote that through media campaigns and that sort of thing, but the most important reason for being safe at work is what is at home, which is right.
It is important to have a functional system around the management of this scheme. That is one of the key issues around the proposal to change the nature, structure and membership of the board as well as the process for appointing those members. Like the member for Rumney, I am not convinced an argument has been made for the need for that.
We were told at a briefing some weeks ago that one thing was lacking - someone with expertise and evidence-based management of work-related injuries and data analysis. I know the member for Rumney asked about this at the briefing - it was raised.
I have proposed an amendment there. I am not sure how it will fit with the amendments that the member for Rumney is proposing. My amendment has been circulated but I am not sure we need to proceed, except to say it is important we have skills-based boards.
The challenge with an amendment bill is that you have to cross-reference a principal act all the time. That is one of the arguments we had in the past where having a marked-up bill showed how the amendments fitted in. It is a challenge to cross-reference all the time. The Office of Parliamentary Counsel has a lot on its plate and we cannot expect its officers to do that, but it would have helped in this circumstance.
We have heard a range of differing views about the board structure. The main concern raised by people with expertise and who work in the area - both legal and medical professionals - was in terms of protecting the person, the worker. I did not speak to any insurers. The interests of the employer are also important. The concern raised about the membership of the board and the appointment of board members was whether these amendments would give complete power to the minister in respect to the membership of the board.
I have not read the lower House debate, but the member for Rumney quoted the minister saying he was willing to take on board concerns. I am not sure why these concerns were not raised with him.
How is it he was not aware of these genuine concerns about the nature of the board appointments being ministerially driven and not necessarily focusing on skills required to achieve the functions of the board?
My proposed amendment to clause 6 of the bill is in two parts. I will give further consideration as to how we proceed.
I did not have discussions on this during the lunch break because I was in a committee meeting. I know other members had the opportunity, but we can only be in one place at a time. As the member for Rumney said, we were given further information earlier today and have not had a lot of time to think about the best way forward. We will work through that.
I will raise other matters in the Committee stage. One matter relates to clause 12, where the requirement for an employer to provide notice to the employee in writing using a prescribed form was deemed to be onerous red tape.
If that is removed and it can be provided orally, the lawyers will have a field day. Patients - employees - will be saying 'The employer did not tell me what my rights were.' It is a simple form and it is on the website. All they have to do is click a button, fill it out, print it and give it to the employee. Then there can be no question it was given.
We are creating a problem, not reducing it. We are creating another, fatter wallet for a lawyer. It was a lawyer who told us it should not be changed and should be on a prescribed form. That is the basis for my proposed amendment.
There seem to be competing views on other matters raised. The member for Launceston had a similar representation from the medical profession around the accreditation of medical practitioners in relation to this.
The members for Rumney and Launceston had time to do some consulting during the lunchbreak on what the doctors think. I have not, but I saw an email the member for Launceston shared which showed great concern about the complexity of dealing with workplace-related injuries and illnesses.
I can also see the argument for a person being able to go to their own general practitioner, someone who knows their medical history and that they normally have this or are on these medications. That would be expected to streamline the process.
It is quite a complex area. General medical training, and even some practical work - we always learn on the job whatever the field of health or practice, I can assure members of that - does not necessarily give you the requisite skills to make that assessment.
I am concerned about proceeding without having the time to really understand the best way forward. I think we all inherently trust the medical profession. They are human, however, as we all are, and unfortunately we do see the odd bad apple in the barrel - they usually end up on the front page of some newspaper somewhere. If we need to be able to trust them to make these assessments according to their medical expertise, I am not sure of the right way to proceed with this particular aspect of the bill. I am sure it is a matter that will be debated further.
Talking to one or two general practitioners who may be involved in assessing workers' compensation claims or patients with rehabilitation compensation matters may not give us the true picture. It is a little hard to be sure on that one. I am concerned about that.
I wanted to prosecute a minor change in the Committee stage regarding voting at meetings. I think it is appropriate that every member of the board has a vote. I think that is an appropriate change. I certainly support that. There seems to be no process for resolving a deadlock of votes.
I know that most boards will try to share the consensus. We find that in our committees as well. It is always preferable to have a consensus view, but I cannot say that will always be the case. There needs to be a mechanism for resolving deadlocks. We have a convention in this place - even in the board sitting - if one cannot convince the majority, one would expect the motion to lapse. It helps when there is clear direction on what the process is: the chair has a casting vote, or the motion lapses or another process is defined. I have seen that lack of clarity with some bills - a couple of them are on the Table at the moment - when that happens. It is all well and good to say we generally work to consensus. That is fine, but it does not always work that way in reality.
Generally, the changes are appropriate. I accept there has been consultation. I have talked with people who were consulted. I am not saying the relevant people were not consulted. It seems some genuine concerns since raised with me and other honourable members, if they were taken on board, have not been reflected in the legislation. If those concerns were deemed not valid by the Government, which is the Government's right and choice to do, it needs to clearly articulate why that is the case, and then convince us that this is the right way to go.
There are a number of areas where I am not convinced, at this stage, but we have a Committee stage as well as the Acting Leader's reply.
I will leave my comments at that. I think there is a little more work to do. I am concerned about proceeding through this without an opportunity to have some clear explanation around removing the accreditation for the medical practitioner in a number of places. It is not important in every clause, but I think it is particularly important in section 86 of the act, which clause 24 amends. That deals with cases in which the employer may terminate or reduce payments. Under the current act, it requires an accredited medical practitioner to make an assessment about the employee, the patient. The accredited medical practitioner has been taken out. I need to understand exactly how that would happen.
If an employer says, 'Clearly, this employee is fit to return to work. They need to go to see this doctor'. If that doctor is a fly-in doctor who does not really know the employee, but deems the employee to be fit to return to work because they may lack the skills that an accredited medical practitioner would have, I am not sure that is the best way forward.
Again, it comes back to understanding the fundamental differences about why that has been put there. If it is only to make it easy for any medical practitioner to undertake that assessment and say, 'Yes, fit to return to work', it does not really make it easier because that person may be directed, potentially, by an employer to go to a particular medical practitioner who does not know the employee as a person. There needs to be clarity around how that is intended to work. Employees may be disadvantaged through that if it is the case.
I will leave it at those comments. I am sure there will be other contributions and more information is needed.
[4.24 p.m.]
Ms FORREST (Murchison ) - Mr Deputy President, I support the adjournment. When we ask for adjournments, whether the Acting Leader or anybody else, it is in order to properly understand what we are doing. If we are going to pass this legislation, there may be some amendments. We need to be sure they do not conflict with each other or end up in a real mess. I am happy to support the adjournment to allow that.
I ask the Acting Leader to consider and understand the desire to move towards a skills-based board. This seems to be one of the areas being considered in amendments. The way the Government has proposed this legislation, it does not appear there is a clear link to ensuring employees' interests and employers' interests are addressed in that skills-based board. When you read the functions of the board in the current act - and there are amendments to that, even in the amendments - it does not make it clear that these interests are going to be served by the board. The board needs someone with medical experience and a lawyer. Those things can be addressed even through the current amendments to the act the Government has put forward. However, it does not cover some of those areas. This is about employers; it is about employees. The way the bill is currently framed, even with the amendments - including some I and others have proposed - does not, I believe, adequately address that.
We need some more time. Maybe not for the amendments we are looking at now - maybe it is for other amendments to properly ensure a skills-based board that reflects the functions of the board. Maybe it is for an amendment to the functions of the board in addition to tying the membership of the skills-based board with the functions of the board.
It is appropriate to give us time. I would like to flag that. I would like to work with the Government - and the member for Rumney, if she is interested in that sort of approach - to ensure we have a skills-based board that covers the skills that we need.
Legislative Council Wednesday 23rd August
WORKERS REHABILITATION AND COMPENSATION
AMENDMENT BILL 2016 (No. 66)
In Committee
Clauses 1 to 5 agreed to.
Ms FORREST - I am speaking to the amendment put by the member for Rumney. The Government said it wants a skills-based board and that is entirely appropriate. Unfortunately, we do not seem to go down that path in other places as readily. We have had discussions around this more recently, but slowly we seem to be getting there.
The Government argued that the secretary of the Department of Justice and the head of the WorkCover board are skills-based and have great knowledge in these areas. No-one would dispute that, but I find that contrary to the comments made about the representative who might be appointed by the TCCI board or Unions Tasmania board. They also come with a set of skills that are reflective of employers' and employees' needs.
We need to be fair here. There are many ways to get a skills-based board. What we have in the original act and what we have in this proposal from the member for Rumney is a bit of a hybrid. We have some representatives with skills because even representative boards do not have people who have no skills.
Whether you are a representative member or not, when you are on a board you have all the fiduciary duties that any board member has. Just because you represent a sector, whatever that is, does not mean you can do whatever you like. There are corporate governance requirements that every board member needs to be cognisant of and abide by, otherwise you would find yourself in a spot of bother.
There is merit in what the member for Rumney is putting forward, I agree. We have had some discussions about this. I have had some discussions with the Government and its advisers about how to ensure that the key people who are subject to the provisions of this legislation - the injured workers and employers who have workers injured and want them to return to work. We have all heard stories about malingering workers; there can be victims on both sides at times. The people who are most impacted by this legislation are the workers who are injured and the employers who employ them. It is right that there are people there who have expertise in that field.
I am going to refer to another amendment that has been circulated, but it is not on the Table as such at the moment. I had some discussions with Dr Peter Sharman, which is probably reflected in his email to members. This is a little along the model used in Western Australia where the representative body is not prescribed, as would be in the case of the member for Rumney's amendment, but there is a person who has expertise in work-related injuries and who advocates for, or who has experience in respect of, the interests of injured workers.
Clearly, the most well-skilled and experienced people in that area are most likely to be union officials and people who work in the union environment. They undertake those roles. It is quite likely that someone involved with the union, either in a senior way or not, could be one of the most appropriate people.
Do you name up the union and TCCI as the main representative bodies? You could argue that yes, you should, because they are the bodies that clearly represent their interests. Not everyone is a member of TCCI and not everyone is a member of a union. With medical practitioners you could say, 'Why don't we use a representative group there?' Which one? The college of GPs, the AMA? Who? It becomes difficult. Lawyers - do we name up the Law Society, the Australian Lawyers Alliance? Which body?
It is difficult. If we are looking at a skills-based board, provided the skill set is identified - and this is where I think the Government was wrong in moving right away from identifying the skill set and giving all power to the minister. With all due respect to the minister; it does not matter which minister it is -
Mr Valentine - It can be a minister of any day.
Ms FORREST - That is right. I am not saying it is this minister; I am saying it is any future minister. This legislation would endure, and it is fraught.
There are some questions to be asked about the functions of the board in the principal act when we get to that clause in this bill. It is odd that some of the functions of the board are being removed in this amending bill the Government has tabled. Some of these skills would clearly only be met by the people these amendments are seeking to address. In both the member for Rumney's proposed amendment and my proposed amendment, the terms of 'review and monitor the performance of licensed insurers and self-insurers and the operation of the Nominal Insurer' need someone of experience in insurance matters. A doctor or another health professional would not be particularly good at it. They are there for another reason.
I can definitely see merit in the member for Rumney's amendment. I hear what other members have said and could almost be persuaded that it is the better way to go. I am going to be the devil's advocate. I will probably be shot by somebody, but that is okay.
If this amendment is supported, it removes that second person from the Government - the bureaucrat-type of person - which is fine. The amendments I have circulated for honourable members' consideration at a later time do the same thing, but they do it in several clauses, so technically members could vote against that and support the Government's view, but still get a skills-based board.
I pointed that out to the Government's advisors. There should only be one, because when you read the principal act - the membership of the board - the board consists of (a), which would stay in unless the member for Rumney's amendment is supported, 'the secretary of the Department, or a person nominated by the Secretary, who is to be the chairperson'. That could well be the WorkCover board person. The secretary does not have to do it. The secretary is an expert in policy, yes, but the head of WorkSafe would have all those policy skills. We do not need two, so I would encourage members, if they do not support the member for Rumney's amendment, to support all of mine, not just the one about the skills-based.
I have two more calls if I need them, but thought I would put those comments on the record to try to explain my position.
Ms FORREST - Madam Deputy Chair, I move -
First amendment
That clause 6(a) be amended by leaving out 'paragraphs' and inserting instead 'paragraph'.
This in itself does not make much sense so I will speak to the intent of this. The first and second amendments go together; the third is slightly separate. As I mentioned during my contribution to the previous debate on the member for Rumney's amendment, I do not believe there should be two departmental or bureaucratic members on the board. If we are going to form a skills-based board, we need to be true to that. Of course the head of WorkSafe would have a very good knowledge of this area and could be nominated by the secretary - as is provided for in the current act, which will not change under this amendment - to be the person who sits on the board and thus the chair. Some would have argued or made the point outside the debate that the secretary - or the nominee of the secretary - should not automatically be the chair anyway; the chair should be elected by the board once the board is in place. There is that body of thought and I have some sympathy with that. However, I will not go that far at this stage.
I certainly agree - as the member for Rumney alluded to in her contribution on her amendment - that a review clause is important. If it does not work well and we find that workers' interests or employers' interests are not being addressed adequately through the skills on the board, it may be time to change it. If it is clear that the people appointed to those positions to have those skills are not representing those particular bodies well enough, maybe we will need to name it again and go back. Maybe that is when the member for Rumney's amendment would see another revisit.
This proposed amendment is to provide for only one bureaucratic or departmental person on the board. I know the Government is probably unlikely to support this, but I encourage all other members to support it if we are going to be true and fair about a skills-based board and not have it over-bureaucratised.
We have seen another board in one of our recent debates that has had challenges with involvement from departments and perhaps making that slightly dysfunctional at times, from what I have heard. We need to get away from that. Skills are skills. The skills are clearly outlined. If the minister wanted the capacity to have an extra member on the board, there could be a further amendment to this clause to allow the minister to appoint someone of their choosing who would fulfil other skills or functions of the board not currently covered directly by the members who are there.
I discussed another point with the Acting Leader's advisors: if that is a concern, because you are removing this person when there are two departmental officers, if there is another skill set you think you need, whether it be financial knowledge or accounting knowledge, maybe you would make another position or open it at the minister's discretion. There are clearly skills that are needed, which we will get to again when we deal with a later amendment, but this first one is to provide for only one departmental or bureaucratic nominee or member on the board.
Mrs HISCUTT - The head of WorkSafe, who is currently sitting in the Acting Leader's reserve, is the Government's chief subject matter expert on workplace health and safety and the related legislation. It is very sensible to have this person bring his skills and experience to the board. The secretary of the department is, under the current act, the chairperson of the board. This is an appropriate and effective arrangement and we do not think that should be changed.
One of the board's key functions is to provide policy advice to the minister and the secretary of the department will always be a person with significant skills and experience in relation to policy. We feel that the WorkSafe person is very important to have on the board. I urge members to vote against this amendment.
The Committee divided -
AYES 8 NOES 3
Ms Armitage
Mr Armstrong
Mr Finch Mr Dean (Teller)
Ms Forrest Mrs Hiscutt
Mr Gaffney
Ms Lovell
Ms Rattray
Mr Valentine (Teller)
Mr Willie
PAIR
Mr Farrell Dr Goodwin
Amendment agreed to.
Ms FORREST - Madam Deputy Chair, I move -
Second amendment
That clause 6(a)(b) be amended by leaving out the proposed paragraph.
This completes the second amendment.
Amendment agreed to.
Ms FORREST - Madam Deputy Chair, I move -
Third amendment
That clause 6(a)(c) be amended by leaving out 'Minister', and inserting instead -
Minister -
(i) one of whom is to be a medical practitioner, or a registered nurse, with expertise in evidence-based management of work-related injuries; and
(ii) one of whom is to be an Australian lawyer with experience in workers rehabilitation and compensation matters; and
(iii) one of whom is to be a person with extensive experience in the workers compensation insurance industry; and
(iv) one of whom is to be a person with expertise in the evidence base related to management of work-related injuries and who advocates for, or has experience in respect of, the interests of injured workers; and
(v) one of whom is to be a person with expertise in the evidence base related to management of work-related injuries and who advocates for, or has experience in respect of, the interests of employers.
We have debated this matter at length. This sets out the skills the minister must consider in appointments to the board and I urge members to support the amendment.
Amendment agreed to.
Clause 6 as amended agreed to.
Clause 7 -
Section 10 amended (Functions of Board)
Ms FORREST - I alluded to this in my earlier contribution. When we go to the principal act, 10(c) is removed. It states -
to monitor and review the Department in connection with the exercise of powers and the performance of functions under this Act;
I am interested why 10(c) is being removed. Why would the board not do that? Who is going to do it? Surely someone should be monitoring it and having some oversight of it.
Section 10(h) is being removed. That section reads -
to review and monitor premium rates and, so far as is practicable, ensure insurance arrangements are efficient and competitive;
Whose role is this if this is removed from the board's functions? Surely it is important to monitor premiums. Madam Deputy Chair, I know you raised this issue about premiums and the cost to business of workers compensation premiums. Whose responsibility does that become? If this is taken out, it is no longer the board's function to do that.
The other function that is removed is section 10(l) -
to issue guidelines for the assessment of permanent impairment under this Act;
I assume that is taken out because that is done by external bodies. I am interested in why that is being removed and who that is now done by.
This clause will change the functions of the board. Some of it still seems possibly to be within the remit of the board, but we need to understand why that is being altered.
Mrs HISCUTT - In relation to (c), the responsibilities of the WorkCover Tasmania Board relate specifically to worker rehabilitation and compensation, work health and safety and asbestos compensation. Accordingly, it is appropriate the scope of the board's functions relates specifically to these matters.
The Tasmanian State Service has robust internal and external review and audit mechanisms to review the operations of departments and their outputs. Further, many statutory frameworks apply, including the Financial Management and Audit Act 1990, the Audit Act 2008, the State Service Act 2000 and the Right to Information Act 2009.
While section 10(c) of the act may have been considered relevant when the act was originally drafted, the function is no longer necessary or appropriate in the context of contemporary governance and review arrangements. The board has never exercised the power to review the department.
With regard to (h), it is unnecessary for this function to appear in section 10 because the function covered under the broader function under 10(b) is to monitor and report to the minister on the operation and effectiveness of the legislation and on the performance of the systems to which the legislation relates.
Clause 16 of the bill inserts a new section that outlines the board's responsibilities with respect to the issuing of guidelines in specific detail. It is unnecessary to have this task identified in the list of functions in section 10, when the responsibility is so clearly outlined in another section of the act.
Clause 7 agreed to.
Clauses 8 and 9 agreed to.
Clause 10
Section 26 substituted
26. Presumption as to cause of disease
Mr DEAN - I would like some background on this. This is where there is presumption as to cause of disease and the board, by notice, may specify an occupation for an exposure.
Mrs Hiscutt - What section are you reading from?
Mr DEAN - Clause 10 in the bill. Obviously, the board in providing that notice is required to take the appropriate medical information necessary to make that determination. Is that the way it is done? That is the -
Board, by notice, may specify an occupation, or an exposure, to be an occupation or exposure that is to be presumed to contribute to a substantial degree to a disease specified in the notice.
I would have thought the board would not have the medical expertise to make those presumptions or those decisions.
Ms Hiscutt - That is why it is a skills-based board.
Mr DEAN - I suppose it is. That is the way it is set up. The amendment that has just gone through will give them that background to be able to do that. I am querying it to make sure that requirement is there. Just because medical people have a certain expertise in one area does not mean they have expertise in another area. Medicine is such a complex issue that you need special experts at times to give you the right information to make those determinations. Having someone on the board who is a doctor or who has some medical background does not necessarily mean they have the expertise to do that.
Mrs HISCUTT - An object of the Workers Rehabilitation and Compensation Act is to provide fair and appropriate compensation to workers and their dependants for workplace injuries. Schedule 4 of the act currently specifies a list of work exposures and diseases that have been proven to have a causal link, known as 'deemed diseases'.
Under section 26 of the act, if a worker claims compensation for a disease specified in Schedule 4 or one that corresponds to that disease, it will be presumed, in the first instance, that their work substantially contributed to their disease. Where there is a dispute, the onus is on the employer to establish that no such causal link exists.
The bill removes from the act the list of diseases presumed to be work-related and instead provides that the board can specify a list of relevant diseases and the occupations or exposures that contribute to each disease.
Enabling the board to specify diseases presumed to be work related will ensure the list of prescribed diseases can be more effectively updated in response to new research and findings without requiring an act of parliament.
The operation of section 26 of the act will be substantially the same as the current provision. However, rather than referring to Schedule 4 of the act to determine whether the presumption applies, parties will need to refer to the list of prescribed diseases specified by the board.
The bill gives the board the opportunity to adapt an instrument in relation to presumed diseases that has been made by SafeWork Australia or another body.
After extensive research, SafeWork Australia has developed an up-to-date Australian list of deemed diseases using the most recent scientific evidence. The document was prepared by SafeWork Australia with the intention that it be used by Australian jurisdictions when considering a revision to the list of presumed diseases in workers compensation legislation. By taking this document into account, Tasmania will be a leading jurisdiction in this matter. We understand that other jurisdictions are currently considering the implementation of the SafeWork Australia list.
Mr Dean - Thank you very much for the answer.
Clause 10 agreed to.
Clause 11 agreed to.
Clause 12 -
Section 33A substituted
Ms FORREST - Madam Deputy Chair, I move -
That clause 12, proposed section 33A(1) be amended by leaving out 'orally or in writing' and inserting instead 'in the prescribed form'.
I spoke to this some time ago in my second reading contribution. A lawyer who works in this space said to me that having a provision in the legislation that the employer can inform the employee of their obligations or responsibilities under this act merely orally will create a lawyer's picnic. There will be arguments about whether they were told, what they were told, who said what, whether there was acknowledgement and maybe the person did not hear it. I understand that the prescribed form currently there is about red tape reduction, but this creates a whole heap of other compliance issues by having the opportunity to do it orally.
The prescribed form is easy to download, easy to complete and there can be no question as to whether it has been given or not. It is not onerous and not difficult, so the employer can easily do it. It also clears up the aspect of an argument waiting to happen. It does not protect either the employer or the employee. The employer could swear black and blue they gave the employee the form and the employee could swear black and blue they did not get it. The employee could say, 'I got this form and this is what it said'. The employer could say, 'I did not give them a form. I just said to them this is what you have to do'. If it is a prescribed form, it is clear there can be no mistake. It is one way to reduce red tape, but according to the lawyers I have spoken to, it will not. It will create more problems than it seeks to solve. I urge members to support the amendment.
Mrs HISCUTT - The main intent of this clause as stated in the policy approval is to remove the requirement of employers to provide notice in writing and require instead that they inform the worker of their rights to claim. The current act requires an employer who has been informed of a worker's injury to serve on the worker the prescribed notice in writing within 14 days, advising of their rights to claim, unless the employer has been served with a claim for compensation.
This proposal was made because the requirement for employers to provide written notice is onerous, particularly for larger employers. The bill removes the requirement for employers to serve on the worker the prescribed notice informing them of their right to make a claim, and the employer must rather inform the worker of the right to make a claim. This information may be given to the employee either orally or in writing.
Ms LOVELL - I completely support this amendment. Many of the changes in this bill are about reducing red tape, but there is a line between reducing red tape and leaving workers, or their employers, vulnerable to litigation or exploitation. In my previous line of work I dealt with many injured workers who even with the act as it currently is were not informed of their rights in accordance with the act and their right to claim for compensation. I have seen firsthand the trauma and the ongoing issues that can cause. I strongly support this amendment and urge all members to support this amendment.
I am concerned it is deemed onerous for employers, particularly large employers. I suggest that if the task of informing their injured workers of their right to make a claim for compensation in writing is onerous, perhaps they should be reviewing their work practices. I will be supporting this amendment and encourage members to do the same.
Ms FORREST - The Acting Leader said that currently the act requires the employer to serve this notice on their employee. From memory, it does not make the requirement to serve, if that is the issue here. It sticks with what the Government has proposed here in terms of the wording. It will now read -
An employer who is informed by a worker of an injury to the worker must, within 14 days, inform the worker, in the prescribed form ...
It takes away that opportunity to say, 'I told you that you could claim.' It does not require any major formal serving of a notice or anything. They have to inform their workers using a prescribed form, so there is something in writing that can clearly show that it was provided by the employer and received by the employee. When workers are injured, or anyone is injured, they often do not think straight. This is within 14 days. I accept that within 14 days they might be able to think more clearly, but often people cannot remember what they are told. You go to the doctor to get your diagnosis of cancer, all you hear is, 'I am sorry, you have cancer, but it is okay, this one is completely curable. We have the medication to cure it, you will be fine', but all you hear is that you have cancer and you think you are dying.
When people are sick and receive bad news or have an injury that frightens them, which it does, it is important that things are provided in writing so there is certainty, so they know what they can do. This does not require the employer to serve a notice on them. All it does is ask them to inform them, as the Government is proposing here, but to do it with a prescribed form. I urge members to support it
Mr DEAN - I am inclined to support the amendment, but I want some clarity around what the Acting Leader said in relation to the Government's position on this. Are you saying some other form of documentation must be provided? Is this the only form of notification that has to be given? I suspect that if the injury is quite bad and the injured person cannot comprehend, it would have to be in writing but there is nothing here to say it has to be.
Is this the only requirement on an employer in that situation? That is, 'orally or in writing' provide to the injured party. If there is no requirement to be in writing, I certainly support the amendment.
Mrs HISCUTT - There is no other option in the bill before us to provide for any notification in writing, but the option to provide information orally is already active in the act. Section 33 of the act obliges the worker to give notice of an injury to their employer, supervisor or other relevant person as described in that section. This notification may be made orally or in writing.
Mr Dean - That is by the victim.
Mrs HISCUTT - Further, employers have an obligation arising from receiving notification under section 33 - the 14-day window in which employers are obligated to notified the worker of their rights to claim commences when the employer is informed by the worker of an injury in accordance with section 33.
Mr Dean - That can be in writing or orally.
Mrs HISCUTT - This is orally.
There has been no indication from workers or employers that oral notification has caused ambiguity or a dispute in relation to these existing provisions. It is also noted that this amendment was recommended by members of the WorkCover Tasmania Board, which includes two representatives from WorkSafe Tasmania. This bill does not alter the need for workers to be informed; it simply changes how it can be done and, as such, should not alter an employer's intentions to comply with the requirements.
The prescribed form provided in the regulations is still able to be used should an employer wish to notify a worker via this means. Removing the ability for employers to inform workers orally removes the original intent of the amendment.
Mr DEAN - When an employee reports to the employer that they have been injured on duty, there is a requirement for that to be reported to WorkSafe by the employer. Is that what you said? If that is the case, a full record of it is made.
Mrs Hiscutt - It is not about contacting WorkSafe, at this stage. It is between the employer and the employee. This section deals with the contact between the employer and the employee.
Mr DEAN - If an employee notifies the employer they have been injured on duty, is the employer required to report that to Workplace Standards Tasmania?
Mrs Hiscutt - To clarify: is the member talking about the contact between WorkSafe and the employer?
Mr DEAN - Yes.
Mrs HISCUTT - Some injuries are not notifiable. Not all injuries are notifiable. This just sets up the mechanism. If it is a notifiable injury, it has to be reported under the WH&S act.
Ms Forrest - That is separate legislation.
Mrs HISCUTT - Yes. Not under this act.
Mr FINCH - Listening to what is going on, this is pretty straightforward. It is orally or in writing. It is a dotting the i's and crossing the t's process. It will become a 'he said, she said' argument if it progresses further and proper procedures are not followed in the prescribed form. Orally is not worth the paper it is not written on.
Amendment agreed to.
Clause 12 as amended agreed to.
Clauses 13 to 24 agreed to.
Clause 25 -
Section 87 amended (Cessation on account of age of entitlement to weekly payments)
Mr VALENTINE - First, I want to thank the Acting Leader for calling an adjournment so that further investigation could be done on this clause, which amends section 87 of the act. There was a lot of concern from the Council on the Ageing - COTA - about the level of respect given to people approaching the end of their working life and those who indeed may work past the pension age, as these amendments put it.
It amends section 87(2) and 87(3)(a) and (b) of the act. Basically it means that older workers are being discriminated against because they are treated differently to younger workers under this act. I alluded to that in my second reading contribution. Also, this is supposed to be red tape reduction, but it means older workers have to go through the tribunal to get further years of payment if they are working past pension age. Let us face it, as I said before, many people who are in this circumstance may have to work past pension age because they simply cannot afford to exist on their superannuation. I approached COTA again and I approached TCCI on this bill during the break. There was a certain degree of recognition from TCCI that we are getting more older workers in the workforce as the pension age goes up. It is going up to 67; eventually it will go to 70.
I started to have this explored. We asked for information on the report of the actuaries, which was sent to us this morning. That was going to be provided earlier. I guess had we had it earlier, we might have been able to treat it more in depth. The complexities in it are significant. I want to read an analysis into Hansardbecause it is on this particular section. I understand this is not a second reading debate, but I think it is important for the information I have gained -
Madam DEPUTY CHAIR - We need a question from your contribution. That is the main part of what we do here. Just keep that in mind at the end of what you read.
Mr VALENTINE - Being given that challenge, my question is: would the Acting Leader consider a further adjournment of this to get all the players around the table to see whether they cannot come to a consensus on what the amendments should be in this section? That is my first question. I have another question to follow that if I get a 'No' there.
Mrs Hiscutt - It is not a no, but I doubt it. It would take an awful lot longer -
Mr VALENTINE - I do not know how much longer it would take, but -
Mrs Hiscutt - We have consulted and landed at this point.
Mr VALENTINE - My question relates to a statement the minister made to me on Saturday evening at a function, that they would be reviewing this section within two years. Before the Acting Leader answers that question, I would like to read the analysis to show the complexity of the thing.
Ms Forrest - Do you want to read the whole thing?
Mr VALENTINE - No, I am going to read some relevant components of it. Everybody has been sent this email. I am asking the Acting Leader whether the minister is prepared to review this.
I will go to part of the email that was sent to us -
Finity's results indicate that:
1) where the benefit cap is removed entirely or increased to 5 years, premium rates could be expected to rise from the current level of 2.33% to 2.41%;
That is a 0.08 per cent rise -
2) where the benefit cap is set at 2 years following the Pension Age, the expected increase in premium rates is 2.37%; and
3) where the benefit cap is set at the Pension Age with and without exemptions, a rise in the Premium Rate to 2.35% could be expected.
Further down, they state -
Discounting these factors leads to the following summation -
This is COTA's summation of the direct impact of extending the cap on weekly payments -
1) having no cap or a 5 year cap, would more likely increase Premium Rates by just 0.04%;
2) introducing a 2 year cap after reaching the Pension Age would lead to a rise in premium Rates of just 0.02%; and
3) introducing a cap at the Pension Age, irrespective of the rights conveyed by s87(2) and (3) would result in a 0.01% increase in Premium Rates.
That is quite different from what we are being told - that if you change this, the premiums are going to go up significantly more. Based on their analysis, it seems that it is not the case, hence the reason I ask whether the minister is prepared to review this section, given the complexity of it and given that all stakeholders need to have a say in this.
I understand that if I put an amendment to this Chamber, it will not get through because of the complexity of it. It would be very difficult to expect that.
It is not my role to play the negotiator here. It is our role to review legislation. I am pointing out that there is definite discrimination against older workers. I ask the Acting Leader: is the minister going to review this legislation, particularly with respect to older workers, within the next two years?
Mrs HISCUTT - The minister is prepared to give an undertaking that further down the track it will be looked at.
Mr Valentine - Time?
Mrs HISCUTT - No, we do not have a time. He said he would give an undertaking that further down the track it would be looked at. Did you say three years, honourable member?
Mr Valentine - Within two years?
Mrs HISCUTT - Would you settle for three?
Mr Valentine - No, sorry.
Mrs HISCUTT - Could you clarify exactly what your understanding is from your discussion with the minister, please?
Mr VALENTINE - Basically, in discussions on Saturday night, the minister indicated he would be prepared to review it in two years. That is what he said to me, but I want to make sure that you have clarified it with him with respect to the email that was sent.
Mrs HISCUTT - Yes, that is agreeable.
Ms FORREST - I agree this is a serious area that needs a look at in terms of treating all workers equally and not discriminating through age, which this has the potential to do. It is a very valid point. You are reading from what document?
Mr Valentine - I was reading an email from COTA.
Ms FORREST - Yes. It is important to know that in the attached document it said -
This letter has been provided for the use of WorkSafe Tasmania for the purposes stated in the first paragraph which is what it is for. It is not intended or necessarily suitable for any other purpose. This letter should only be relied on by WorkSafe Tasmania for the purposes of which it is intended and this letter should be considered as a whole.
I think it is important we do not take bits out of it without considering the whole impact. I absolutely agree this is an area possibly overlooked. In my consultation on this bill there is a strong desire from those involved in the workers rehabilitation compensation area not to hold the bill up by further delaying it. I would be very happy with the agreement or commitment from the Government to undertake a review. I hope it would be within two years. A cohort of older workers who will be retiring or could be injured and not intending to retire at this time could be disadvantaged through this. I am happy to hear that commitment but would not like to hold the bill up for that.
Mr VALENTINE - Absolutely. I appreciate the bill is important and that is why I asked the question. I have assurance now. It means I will not even attempt to move an amendment that was going to kill a bill if something did not come out the way the Government wanted. I would not want it to be killed because it has so many other important things in it.
I thank the Acting Leader and the minister very much for that undertaking. It is important to the sector of older workers. I was quoting directly from an email which was an analysis of the report. I understand all those statements made in that report and I agree with you entirely. Thank you very much. I will not be moving an amendment at this time.
Mrs Hiscutt - Thank you.
Clause 25 agreed to.
Clauses 26 to 46 agreed to.
Clause 47 -
Schedule 2 amended (Provisions with respect to meeting of Board)
Ms FORREST - Madam Deputy Chair, I move
That clause 47 be amended after paragraph (c) by inserting the following paragraph -
(d) by inserting after subclause (3) the following subclause:
(4) In the event of inequality of votes, the person presiding at a meeting of the Board has a casting vote.
This is to break a deadlock. The number is uneven on the board, but if a member is away and there is an inequality of votes on a matter, there is a mechanism to decide that position.
I made the call to the Office of Parliamentary Counsel - OPC - to suggest we need some mechanism to break a deadlock. I appreciate most of the decisions would be by consensus. It is unlikely to be needed to be used, but it is no good saying it will never happen because when it does and there is no mechanism, we will have no clarity. The chair will have the casting vote to break a deadlock if that situation should arise.
Mrs HISCUTT - To further maximise the effectiveness of the board, voting arrangements are amended in clause 47 to ensure each member of the board is entitled to vote. The existing item 2(3) in schedule 2 specifies that questions will be decided by a majority of votes. It is also recognised that during consultation on the draft bill, the WorkCover Tasmania Board suggested that the chair be given a casting vote. This was not progressed as part of the bill as it was considered that the board ought to strive for general agreement on matters rather than rely on a casting vote.
It is also noted that item 4 in schedule 2 provides for the board to determine the conduct of business at meetings. This means that the board may determine that the person presiding at a meeting of the board has a casting vote. While the clause to grant the chair with a casting vote was not included in the bill as introduced, the proposed amendment is agreeable.
Mr VALENTINE - Does the chair have to vote? Or does the chair have the opportunity to vote? If there is a deadlock and they choose not to use their casting vote, do they have that option? I am looking at the member for Murchison to establish whether that is her intention.
Ms Forrest - It says that if there is an equality of votes that the person presiding has the casting vote.
Mr VALENTINE - I understand that they have a casting vote, but they may choose not to exercise it.
Mrs Hiscutt - Not if they don't need to.
Mr VALENTINE - I am wondering whether this forces them to vote -
Ms Forrest - It gives them the power, it is silent otherwise.
Mr VALENTINE - It is your understanding that they would have the choice to vote or not, if they wished to, with that casting vote. It is not in writing to say they have to exercise it. It is just they have a casting vote and they may not choose to exercise it.
Ms FORREST - In response to the member for Hobart, what I am seeking to achieve there, as the Acting Leader verified by her contribution, is a mechanism whereby there is an equality of votes.
Mr Valentine - I understand that.
Ms FORREST - We did this with the TMAG bill the other day. That would have stood adjourned forever; it could have gone on and on and on. If there is an equality of votes, which I suspect will not be very often, if at all, but if it happens the person presiding has the casting vote. One would expect them to exercise it one way or the other to get a resolution, otherwise there is no resolution. It is about good governance and practice.
Mr VALENTINE - I understand that entirely. I understand fully the intent of it.
Mr Dean - And you are not being difficult to get on with?
Mr VALENTINE - I am not being difficult to get on with. I just think they should exercise the vote. If the chair decides not to exercise the vote, then so be - the matter might come back.
Ms Forrest - You have not really convinced the majority, have you? I imagine the chair would say, 'You have not convinced the majority, so no'. At least they have the casting vote.
Mr VALENTINE - Yes.
Amendment agreed to.
Clause 47 as amended agreed to.
Clauses 48 and 49 agreed to.
New Clause A to follow clause 45 -
Review of restructured Board
New Clause A presented by Ms Lovell and read the first time.
Madam Deputy Chair, I move -
That new clause A be read the second time.
With a significant change to the structure of the board, it is important to have an automatic trigger point for the board to be reviewed and the functionality of the board to be reviewed. This is a significant change to the board and is in the interests of ensuring the board is operating as intended. It is important we have an automatic review. I expect the Government would support this if they have confidence in the structure of a skills-based board.
Mrs HISCUTT - The WorkCover Tasmania Board produces an annual report. This is where the big review of the board is. That report outlines the performances of the board against its strategic objectives. This report is publicly available and is used to monitor the performances of the board. The additional review as suggested by the member for Rumney would duplicate this work, therefore the Government will not be supporting the amendment.
Other boards produce their annual reports in the same way. It would be picked up then by everybody and anybody if the board were not performing. Other Tasmanian boards are the Parole Board, Property Agents Board, Guardianship Administration Board, and Tasmanian Development and Resources Board. They all have boards and all have to produce annual reports which is where reviews are done. When the annual report is produced, if the member sees something there she does not like, she can table it for noting.
Ms LOVELL - I still urge members to support this new clause. It is important there is a specific review. This is a one-off. It is not an ongoing review. It is a one-off review specific to the functionality of the board and its structure, in addition to the annual report. It allows three years for the board to settle in and start functioning effectively, but gives that trigger point where we can review what is a significant change.
Mrs HISCUTT - I remind members the trigger point is the annual report. It will be there. I would like to see the member put it on the Notice Paper when it comes out and then we can discuss what her opinion is.
Ms FORREST - Madam Deputy Chair, I am inclined to support that this new clause A be read a second time, because we are talking about a separate process done by an independent body. It is not just a review within the department looking at the functions of the WorkCover board. This is looking specifically at how things are functioning with this new board structure. I took on board the comments. It was a close vote on whether the member for Rumney's amendment would be agreed to or not. If the operation of the board does not adequately see employers' interests or employees' interests addressed, for example, then noting that in the annual report is unlikely to occur easily. It is not going to be easily identified that is happening because it is not something the annual report is going to cover.
Sure, the annual report covers the functions of the WorkCover board and WorkSafe. I believe I have noted that report in the past, particularly when we note the workplace injuries. I was trying particularly to make the point some years ago that mining is not the most unsafe environment to work in as a lot of people think. The most unsafe environments to work in are actually the service industries, construction and forestry.
We note these reports but it does not go to the level of detail about how the board is functioning in its new format. It is reasonable that there is an independent review of this as the new clause says the independent review is to be carried out by persons who, in the minister's opinion, are properly qualified, but also one or more who are not employees of the state or the agency of the state, so there is that independent oversight. You can confidently get input from employers and employees to be sure that everyone's interests are being met. A friend of mine often raises concerns with me about matters that arise, such as levels of incapacity and how those things are assessed. There are opportunities to raise those things. We can ask questions and we can note an annual report, but this is not the same as the reporting them in annual reports. It is a separate process to see how the new board function is working.
If interests of the key people are not being well served, those in whose interest this bill is all about - the employers and the employees - perhaps it does need review and change. That is the only way to be really sure. An independent review would delve right into that and look at it, rather than the overarching question of how this whole department and section is working.
Mrs HISCUTT - The Government sees this as duplication. The chairperson of the board has to write a report in the annual report and they will have to explain all that has happened in that year in that report. That chairperson will have to talk about any anomalies - all the good and bad stuff - and it will be there for all and sundry to see. This extra review is unnecessary because the annual report contains all of that. The member for Rumney may choose to table it in parliament for us to discuss at another time.
Mr GAFFNEY - I hear the Acting Leader's words. I have yet to read many reports from chairpersons who say, 'By the way, we have had a very bad year and the legislation that was passed was ineffective and it has not worked that well'. Or that it is about a teething problem.
The essence of this is that it is a change. It is not that difficult and not that onerous. It makes sense to me, in this situation, for somebody independent to have a look at how it is working and being able to add to the annual report if need be. It is not that difficult. I keep getting the feeling that the Government is saying no to anything suggested by this side of the Table because it is political pointscoring.
This makes common sense. It is not a bad thing to do and is not that difficult. I am surprised the Government would be so resistant to it. An annual report is different to what is being requested in this. I will be supporting it.
Mrs HISCUTT - I point out that we have supported a few amendments. Other than this being duplication, we do not think this amendment is necessary.
Mr DEAN - I am inclined to support the amendment. I say this because every year I move that the annual report of the Department of Police, Fire and Emergency Management be noted.
As the member for Mersey said, I have never seen a comment in the annual report of police, or any of the others, that does not identify with having had a good year. We do not see the warts and all positions in these reports. There is just not the enthusiasm to do that. The secretaries of these departments would not be happy if that were the situation. I am not convinced I should not support this simply because of an annual report. It reads -
As soon as practicable after the end of the review period, the Minister has to cause to be carried out an independent review.
So a review period is written in. Is that it?
Mrs Hiscutt - Yes.
Mr DEAN - The minister is to cause to be carried out an independent review of the functionality of the board.
I would not have thought it was going to be, as somebody else mentioned, a difficult job, but a relatively easy function to do. I am not sure who would do it, but there would be plenty of people around with the expertise. I do not think it would be costly. Maybe the review of the board could be done by departmental personnel within one of the departments. I would not have thought that would be onerous. At this stage, I am inclined to support the amendment.
Mrs HISCUTT - The amendment says there has to be an independent review; it will not be a departmental person; it has to be independent, so there will be a cost to it.
My final comment, other than there will be a cost to it, is that we see it as duplication and unnecessary red tape. I urge members to vote against it.
Mr VALENTINE - The member for Mersey makes a very good point about annual reports. If I think back to the TMAG bill with respect to tabling something in the House, that is exactly what we expected there.
Ms Forrest - That was a ministerial direction, slightly different.
Mr VALENTINE - I know it is slightly different, but we are not asking other departments or groups to do it. The fact is that it will be tabled. It adds to transparency. In this instance, it is a change to the board and therefore, as a one-off, it is sensible that it be reviewed. Who knows? We could find out all sorts of things that come out of such a review: that it is absolutely terrible the way it is and there might have to be a total revamp. It could be that it is going so beautifully that why didn't you think of doing this before? We do not know. We need transparency. It is getting a good look over. It is a change to what has been in the past. I think it is good. I will support it.
Mr GAFFNEY - I would have thought the minister would appreciate the feedback that can be gleaned from an independent report coming back outlining how it has worked, its efficiencies, advantages or disadvantages of it. I think that is quite above board. If it works, they do not have to do the review again. It is not that onerous a task. It provides people with an opportunity - those board members, whatever the process is - to give their honest opinion about whether the changes have been valuable. I am going to support it.
Mr DEAN - This is a very important board that makes critical decisions. This board makes critical decisions on the livelihoods of individuals. I gave an example in the second reading debate of a critical situation. What affects the individual, particularly the breadwinner, as in the case I referred to, severely affects the whole family as well. It has the potential to break families up. It is important this board does its job properly, and that it is open to an independent review. If they are doing their job properly, they will have no issue with that. They would probably welcome an independent oversighting of where they have been and what they are doing. A lot of people are picked up in workers compensation issues and there are some very sad situations. I know of a number myself and I suspect every member in this Chamber probably would also. I will be supporting the amendment.
New clause A read the second time.
New clause A agreed to and bill taken through the remainder of the Committee stage.
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