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Arbitration for Workplace Injury Claims Long Overdue

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MR MORRIS (Mornington) (17:14): I am delighted to join this debate on the Workplace Injury Rehabilitation and Compensation Amendment (Arbitration) Bill 2021, which, despite the complexity of the short title, is in fact a relatively straightforward bill.

The bill is essentially amending one act, and it is essentially for a single purpose, and that is the introduction of an arbitration process for workplace injury compensation claims. There are some other minor changes as well, but that is really the essence of the bill.

The member for Altona was talking about the Ombudsman and the Ombudsman’s report. The second-reading speech also referred to the Ombudsman’s report. I think it is important to look at that report when we are debating this bill.

Of course there have been two Ombudsman’s reports on WorkSafe. The most recent one was the follow-up tabled in December 2019. There are a range of recommendations in there for both WorkSafe itself, the Victorian WorkCover Authority, and the Victorian government.

There are two recommendations for the Victorian government, but the one that is relevant to this bill is the recommendation of the introduction of a dispute resolution process. The two issues that the Ombudsman identified in that recommendation were to develop a system which allows for binding determinations that is inexpensive, that provides timely outcomes and that necessarily also complements the existing dispute resolution processes. I think the bill before the house largely does that, so that will acquit that recommendation.

I think it is also worth looking at the findings, or the conclusions, that the Ombudsman made, published in her report, about the practices of agents that have given rise to this recommendation. She talks in the report about what is termed ‘Unreasonable decision making by agents’ and identifies a few practices, and they are worth mentioning, too, in the context of this debate.

 The first is cherrypicking of evidence and relying on evidence that is unclear, contradictory or inconclusive, which is not an approach you would want them taking. The second point related to doctor shopping, not on the part of the worker who is seeking compensation and not in the usual sense we talk about doctor shopping—of moving from doctor to doctor to acquire prescription drugs. In this case it is doctor shopping that is intended to represent the practice of sending workers to a preferred independent medical examiner.

That is with the unstated intention that they will get an opinion unfavourable to the worker. Again, this is not a practice that should be followed in any reasonable system.

The third point the Ombudsman raised was that of maintaining a position through the conciliation process that would get chucked out of court, which again is not reasonable. Finally, there was the point about terminating workers’ entitlements without sufficient evidence of material change since a previous medical panel.

There was another practice that I did want to highlight that the Ombudsman also mentioned had apparently emerged since her first report in 2016, and which is equally objectionable in my view, and that is the use of surveillance.

The use of surveillance is a legitimate claim management tool, so I am not criticising the practice, but the suggestion in the Ombudsman’s report is that there have been some instances where surveillance has been misused to try and terminate workers’ entitlements. Again, that is a regrettable approach.

The Ombudsman, quite rightly, observed that the first investigation simply scratched the surface and that we are now getting down into the details of the problems. The point was made in that report, and it has been made elsewhere, that those practices, the practices I have just identified, are effectively in conflict with the objectives of the act.

Amongst other objectives, section 10 of the principal act talks about ensuring that appropriate compensation is paid to injured workers in the most socially and economically appropriate manner. It also talks about establishing incentives that are conducive to efficiency and the discouragement of abuse.

Certainly those practices I have identified are inconsistent with the first. I would make the point in terms of the second that abuse of the system by any party, whether it is an employer, whether it is an employee or whether in this case it is part of the system, like an agent, is entirely inappropriate. There may be a view that agents are not included; I reject that view. They are included, and we expect the discouragement of abuse for all players.

The second point I think that is worth referring to in terms of the principal act is section 11, ‘Statement of rights and obligations of workers’:

A worker—

is entitled to appropriate compensation under this Act … in relation to an injury to the worker arising out of or in the course of employment …

Section 11 does not say they are entitled to apply for compensation, it says they are ‘entitled to appropriate compensation’. Again, the practices that have been pursued do certainly undermine the intention of the principal act.

Now, it is fair to say that the Ombudsman’s two reports, most particularly the most recent one, make it very clear that the system is simply not working and, perhaps more worryingly, that it has not worked for a very long time.

I think if it had not been for COVID, we would be more than entitled to ask in the context of this debate: why has it taken so long? I understand that there have been a few other priorities, and I am pleased that—where are we now?—16 months or so after the report was finally tabled we have actually got legislation to deal with it, but I have to say it is regrettable that it has taken that long.

I also make the point that the act, if the maximum period applies for it to come into operation, will not come into operation until 1 January 2023, so can I say to the government: it is not acceptable to take another almost two years, because you add that onto the 16 months or so since this report was tabled and that is the best part of 3½ years from the time of the report tabling to the time of the legislation being implemented

It should not have taken this long, but I understand why it has and I am not being critical of that. But if it takes another two years to get the bill into operation, that will absolutely be unacceptable.

There are some changes to the conciliation provisions. There are some changes in terms of the arbitration provisions, and the arbitration provisions, as I mentioned right at the outset, are the guts of the bill, if you like. A new subdivision under division 2 of part 6 of the principal act is created, and of course division 2 relates to disputes and conciliation.

There are provisions inserted to set out the dispute resolution process, to deal with details around medical questions, to provide for conciliation of disputes and to provide for arbitration of disputes. The other factor that happens there is that the functions of the Accident Compensation Conciliation Service are amended to include arbitration.

I am pleased to see the bill here. It has taken a very long time to get here. While I know some are unhappy with some of the provisions, including the legal fraternity, from my perspective I think it is a reasonable start. But I urge the government to get it through as quickly as possible.