Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Bill 2023 Second Reading

15 Nov 2023

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I rise to speak on the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Bill 2023. This is a misleading title if ever there was one. This bill is not a modernisation of the scheme in any sense. This is a retrograde step. This bill takes us backwards to the dark old days where workers had to fight through the courts to get compensation after being injured at work. The member for Bentleigh said, ‘Oh, well, if you don’t pass this, we’re risking going back to that time.’ Well, this bill is removing that risk and it is saying we are definitely going to go back to the dark old days for those workers who are going to be denied access to workers compensation and are going to be kicked off the scheme despite the fact that they have had an injury at work and are unable to get back to work. We are now being asked in this place to rush through these really significant changes to WorkCover entitlements and eligibility rules by the end of the parliamentary year and to start on 1 January 2024 changes that will have a huge impact on the health and wellbeing of Victorian workers, and the Greens are saying no, absolutely not, as should everyone else in this parliament.

We are not going to pass a bill that restricts people who have suffered certain mental injury at work from accessing WorkCover or that throws them off the scheme despite their being unable to work. We have heard from government members it is part of a wider range of reforms such as setting up Return to Work Victoria. Where is it? Where is the start date for Return to Work Victoria? It is not there. No-one is in disagreement that the WorkCover system is in need of reform, but to massively limit eligibility and to kick workers off the scheme is not the solution, particularly at a time when public sector workers, the people the government employs, are at higher risk of mental injury in the workplace. They are already struggling from the government’s cuts to thousands of public sector jobs. They have been suffering under a deliberate government policy to keep wages low with their harsh public sector wage cap, and this bill will only make things worse for Victorian workers.

The government has underfunded WorkCover for years. They have kept those premiums far too low for well over a decade now and have now squibbed the real reform that is needed to improve the system. The government needs to go back to the drawing board, look at how workplaces can be made safer, particularly their own workplaces, which are so affected by this bill – our schools, our hospitals, our public service – and look at how injured workers can get back to work sooner and how they can get treatment sooner. There was some really concerning language I heard from government members: ‘Oh, well, if you’re thrown off the scheme at the end of 130 weeks or if you’re denied access to the scheme for certain mental injuries, then you’re back to work. Everything is okay’.

Well, that is not the case, this sort of suggestion that people who are claiming WorkCover are somehow illegitimate or that if you are part of that cohort that has significant injuries that do not allow you to return to work for some time, somehow with a bit of tough love, off the scheme, there you go, you will be right back to work. No, I am disappointed by that sort of language.

The reality is that the WorkCover system can work better and be fairer for people who need it, and we can have a system that does not actually make things harder for them in the first place. As I said, this bill does not make things easier for them. It makes things harder. This is coming after the Royal Commission into Victoria’s Mental Health System and findings and recommendations from that royal commission specifically going to creating mentally healthy workplaces and supporting people experiencing mental illness at work. This bill and the changes in this bill to WorkCover are completely inconsistent with those recommendations from the royal commission and really inconsistent with the approach that we have taken to mental illness and mental injury for some years now in terms of the destigmatisation of mental illness. This bill restigmatises people with mental illness and punishes people who are experiencing mental illness and mental injury at work.

To the details of the bill, it makes a number of amendments to the Workplace Injury Rehabilitation and Compensation Act 2013, the Accident Compensation Act 1985 and the Occupational Health and Safety Act 2004. It has much stricter eligibility requirements for mental health claims, with the definition of mental injury narrowed and specifically excluding stress and burnout, and it proposes the introduction of a whole-person impairment test of more than 20 per cent for workers who are on the scheme after 130 weeks. In addition to that, disputes over eligibility may no longer go to arbitration and must go to the courts instead.

Mental health injuries currently account for 16 per cent of all WorkCover claims. As I said, we have come a long way in destigmatising mental illness, and it has taken a lot of hard work to get to that point. But these new eligibility requirements being proposed are just too narrow. They are going to preclude a significant number of legitimate mental health injury claims. As I said, what is going to happen for these workers under these changes? Is their mental injury just going to go away? It is going to have a really harsh effect on them, with far-reaching effects. They are just going to be pushed now to our already overstretched public health system. It is going to push them onto the hospital system and emergency departments and will actually increase demand on our mental health system, because people will have no other support.

Claims caused by stress and burnout will be ineligible under the changes, with new criteria stipulating that mental health injuries be caused by a single traumatic event, but this ignores the fact that often workers who suffer mental injury due to vicarious trauma, ongoing exposure, distressing events or unreasonable workload will most likely have their claims rejected. Employees who are working excessive overtime because they cannot argue against it or do not want to risk their employment are just going to have to have to suck it up, really, according to this government. As I said, it is this ongoing exposure that will lead to mental health injury, rather than just a single event. This is a workforce, particularly within our public sector, that is already stretched, already stressed and already close to burnout. We have seen that the number of mental injury claims is significant for government services, for our schools and for our health services. It is the government who should be going in and improving their workplaces there, not getting rid of eligibility for workers and denying them access to the scheme.

In relation to the 13-week provisional payments there are a number of issues with this proposal. Number one, they only cover medical expenses, so you will not be entitled to workers compensation in the first 13 weeks. The reality is it can take weeks or months to access supports such as psychologists and medical treatment. The payment is only for a scheduled fee, so the worker needs to pay up-front fees and be reimbursed down the track. You have got medication for mental ill health issues that take weeks or months to actually start working or often require trial and error. It is a situation where people are going to be pushed to seeking alternative diagnoses, and it creates potential for diagnosis creep.

The whole-person impairment test of more than 20 per cent is a significant concern. Under the current scheme workers are entitled to receive ongoing benefits if they can establish they have no work capacity on an ongoing basis, but under these changes, in order to get payments after 130 weeks, they are going to need to have an impairment of more than 20 per cent in addition to having no capacity on an ongoing basis. So you are going to have people who cannot work due to an injury at work being denied access to WorkCover, being kicked off the scheme. For example, a disc herniation under the guide is assessed as 10 per cent. This is not a suitable benchmark to be given for the different types of jobs and injuries that people have. It is made purely with finances in mind so that they can kick a whole bunch of people off the scheme and save the money.

I also note that the AMA guides to determine the whole-person impairment are problematic in that they measure the severity of impairment rather than disability. The whole-person impairment accords higher priority to body regions that are deemed more important to functionality. They were never intended to be used for compensation impairment. They are complex, they are difficult to use, they can lead to inconsistent and inaccurate evaluations of impairment and they do not consider – and this is really important – the unique circumstances of each individual case, such as the person’s occupation, their age and their overall health. I mean, just look at the difference between certain injuries – a physical injury like what you might have as a manual labourer over the age of 50 compared to an office worker in their 20s. It is a one-size-fits-all approach that is just unworkable, and it is going to result in injured workers who are unable to work being unable to receive a payment. Furthermore, injured workers can only use one of mental or physical injury, even if they are both caused by the same incident.

This is just an attempt to claw back some money, and it is injured workers who are going to be paying for it. We all agree the scheme needs reform, but unfortunately the scheme has been for far too long weighted in the favour of agents who want to minimise payment and maximise profits. We have had a number of investigations, inquiries and reports into WorkCover from the Ombudsman. We had the Rozen review. There have obviously been already a number of reviews into WorkCover and actions that have needed to be taken, but they have not been taken by this government. They have not done the serious and the real reform that is required. We have heard from injured workers who have told how they have struggled to navigate the system when they have sustained an injury and are suffering from impairment, often at great distress, waiting for surgery or in pain or on strong medication. The process they have to go through is overwhelming and stressful, so we need to have a system that does not make things worse for people, it actually makes things better for them. Limiting eligibility, stigmatising mental health and penalising workers in making up for a financial shortfall is not the solution.

Quite rightly, the unions, advocates, mental health experts and injured workers are not buying in any way, shape or form the government’s spin on this, and quite rightly they have told us they are advocating to reject this bill. The government say that they have consulted widely. Well, if they had listened, they would not be bringing forward this bill, because they have been told that they should not be bringing forward this bill and that this bill should be opposed. This government is acting like a heartless insurance company instead of a good government that helps injured people in the workplace and actually prevents injury in the first place.

The Greens are opposing this bill. I urge all other parties to oppose it. We will consider the opposition’s reasoned amendment. Whilst well meaning, I think it is unlikely we will be seeing a freeze in premiums for 24 months regardless of whether this bill fails or passes, as stated in the reasoned amendment. But overall, as I said, this bill is anti-worker. It is not a modernisation in any sense. This takes WorkCover backwards, and it has got injured workers paying the price for the government’s own mismanagement of the scheme. I urge all members to oppose this bill.

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