Workplace Health & Safety and Workers' Comp

Concerns remain in council

Members may remember that CCI previously provided an updated on the status of the Safe Work Australia Council as a body created administratively. The status of the council was such that the body would have had little accountability to Parliament for its actions.

Deputy Prime Minister Julia Gillard had resubmitted the legislation to Parliament for consideration. In order to avoid a double dissolution of Parliament, the Senate has now passed the bill, even though the underlying concerns with the body remain.

CCI’s concern with the structure of Safe Work Australia has related to the reduced representation of employers and workers on the council. The reduced number of representatives will mean that the concerns of employers will need to be expressed at the State level.

Western Australian employers should not feel overly concerned with this development because WorkSafe WA is truly a tripartite consultative body, which hears and attempts to genuinely address the concerns raised by employers and employees.

CCI's Anne Bellamy is a member of this committee and remains a strong voice for employers in the State.

The Safe Work Australia Council, which is responsible for developing the model occupational safety and health legislation, met on 11 September 2009. Presented at this meeting was the draft occupational health and safety legislation for further review by members.

This legislation will soon be available for a six week public comment period. CCI urges members to make contact and discuss what impacts the draft legislation may have upon their business. Your feedback is vital so CCI can continue to be a strong voice for WA business.

If you have concerns about occupational safety and health or would like to provide feedback please contact CCI on (08) 9365 7415.

Know your obligations

As an employer are you aware of your obligations regarding superannuation and workers compensation? Did you know that employees are entitled to superannuation contributions when they are medically certified to participate in a return to work program?

For further advice about the effect of workers' compensation and employee relations law, please contact CCI’s Employee Relations Advice Centre on (08) 9365 7660.

By Samantha Rudd

CCI Workers' Compensation Adviser

The National Preventative Health Strategy final report was released on 1 September 2009. Based on seven strategic directions, setting ambitious health targets around obesity, tobacco and the harmful use of alcohol. 

These three were among the top seven preventable risk factors that influenced the burden of disease in Australia, with 7% of the overall burden attributable to each of obesity and smoking and 3% to the harmful effects of alcohol. Preventable risk factors accounted for 32% of Australia’s burden of disease. 

The four targets adopted in the strategy were to:

• halt and reverse the rise of overweight and obesity;
• reduce the prevalence of daily smoking to 10% or less;
• reduce the proportion of Australians who drink at short-term risky/high-risk levels to 14% and those who drink at long-term risky/high-risk levels to 7%, and;
• reduce the life expectancy gap between Indigenous and non-Indigenous Australians.

The effects of these risk factors are clear.

The prevalence of obesity and overweight individuals has been increasing steadily over the past 30 years across all ages, most notably in children.

Projections of the growth in prevalence of obesity mean that type two diabetes will become the major burden of disease for males by 2023. 

Smoking leads to premature death and smoking-related illness costs up to $5.7 billion per year in lost productivity. 

Harmful use of alcohol leads to a number of costs including crime, health effects, lost productivity and road trauma. 

The focus on obesity, tobacco and alcohol is important when we consider that much of the gap in health and life expectancy between Indigenous and non-Indigenous Australians is attributable to these risk factors.

Recent research evidence is presented in the strategy to highlight the impact these risk factors have on health and the importance of early intervention and prevention.

Capacity for the implementation of the strategy will be through a National Prevention Agency which will facilitate a national research infrastructure, provide resources and advice for policy development, generate partnerships for workplace, school and community interventions, assist in the development of a prevention workforce and coordinate and implement a national approach to social marketing.

In each of the three target areas there is a series of recommendations, based around a first phase (2010-2013), a second phase (2014-2017) and a third phase (2018-2020).  Examples of recommendations include:

Obesity

• Increase levels of physical activity and reduce sedentary behaviour at all levels of government, business and the community.
• Introduce comprehensive food labelling detailing salt, sugar and fat content to support healthier food choices.
• Phase out junk food advertising before 9 pm.

Tobacco

• Increase the average price of a packet of 30 cigarettes to at least $20.
• End all forms of tobacco advertising.
• Eliminate exposure to second-hand smoke in public places.

Alcohol

• Phase out alcohol advertising and sponsorship in sport.
• Reform alcohol taxation and pricing (through minimum [floor] price of alcohol) to discourage harmful drinking.
• Develop nationally consistent alcohol policies on, for example, the number of bars, pubs and bottle shops and their opening hours and on sporting codes of conduct for players' alcohol-related behaviours.

The strategy presents a number of specific actions in each of the phases and across different settings including schools, government, workplaces, indigenous communities, primary health care and individuals and families, affirming the need for everyone having a role in prevention and taking responsibility for health.

By Alison Garton

CCI Chief Health Policy Adviser

In the case of employee injury, employers can avoid fines by ensuring they are compliant with the Workers' Compensation & Injury Management Act.

Section 84AA of the Workers' Compensation & Injury Management Act 1981 states that if an employee becomes partially or totally fit for work and has not received the equivalent of 12 months weekly compensation payments the employer must provide the employee with their pre-injury role if it is reasonably practicable to do so, or an alternative position which the employee is qualified and capable of performing and is similar in pay and position.

A fine of $5,000 may be applicable if this is not followed. An employer can identify if this section applies by reviewing the payroll history for any relevant employee.

Section 84AB states that if the termination proceeds and section 84AA applies an employer must notify WorkCover WA and the employee of the termination using the prescribed form and give at least 28 days notice to WorkCover WA and the employee before the termination comes into effect.

A fine of $2,000 for not using the prescribed form may be applicable.

The impact upon the workers' compensation claim will be:

• the insurance company may need to appoint a rehabilitation provider to manage the return to work objective if the employee is not yet fully fit for work;
• the employer will need to continue to pay the full rate of weekly compensation if the employee is not yet fully fit for work, and;
• evidence suggests that the claim duration will increase as it takes a longer period of time to demonstrate that the employee has a work capacity.

It is possible to finalise the employment relationship for an employee who has a workers' compensation claim. The consequence of such a decision is that it is likely to affect the cost of the claim.

If you would like further advice about workers' compensation legislation or strategic claims management, please contact CCI's workers' compensation adviser on (08) 9365 7415.

By Samantha Rudd

CCI Workers' Compensation Adviser

Health promotion and illness prevention, or preventative health, are terms that are increasingly being used in the policies, plans, position papers and discussion papers being put out by several major bodies - but what does it mean?

The National Preventative Health Taskforce, the National Health and Hospitals Reform Commission, various governments and the Council on Australian Governments have all been behind preventative health.

How it fits in with other, equally important, health priorities such as dental care, mental health, aged care and the health of Aboriginal and Torres Strait Islanders is now under the microscope.

It seems certain that Australia needs to act now and government, business and industry needs to commit to a health care system that delivers good value for the large financial investment.

We know that effective health promotion and illness programs can improve overall health, reduce expenditure on preventable chronic diseases such as heart attacks, strokes and type two diabetes, enhance worker productivity and add healthy years to life expectancy.

We also know that historically governments have been reluctant to fund programs where the outcomes are some 20 or more years into the future. Consequently, of the health budget of $94 billion in 2006-07 (representing 9% of Australia's GDP), around $250 million went on health promotion activities, aimed at helping people change their attitudes and behaviours in relation to their health.

Good health is inextricably linked to economic outcomes. Having a healthy workforce is good for the economy and good economic outcomes can in turn assist in improving health. Good health is good for the economy because healthy workers have fewer days absent, are more productive generally and want to remain in the workforce because of the personal and economic benefits.

Australia has an ageing population and the generation entering the workforce is not as numerous, placing pressure on future workforce participation levels. Retaining the baby boomers, with their skills and experience, in the workforce is a very real option into the future. But population ageing also places pressure on expenditure related to aged care, so the fiscal picture could be bleak.

The interim report of the National Health and Hospitals Reform Commission - A Healthier Future for all Australians - tackles many of the issues facing the health system now and into the future. It incorporates much of the thinking that went into the National Preventative Health Taskforce’s recent discussion paper with its emphasis on reducing alcohol and tobacco use and obesity. It adopts a population health perspective, emphasising healthy communities through tackling inequalities in health outcomes and health care, through health promotion and prevention.

But it goes further to explore primary care, aged care, mental health, dental health and issues of governance. It urges a long-term view of health and to undertake reform of what is currently an inefficient health system. 

Of the options for governance of the health system, CCI supports a model of a single funder, namely the Commonwealth, with state management of the day-to-day activities of the system. Any health system must incorporate all sectors, public and private, to enable proper and effective life long care of patients. Central to the reform is integration of services across primary, acute and residential sectors supported by improved health literacy amongst the population, reliable information technology and systems to permit the introduction of a single accessible electronic health record and a strong and sustainable workforce.

By Alison Garton

CCI Health Chief Policy Adviser

The diversity of CCI membership provides for a wide spectrum of social policy engagement, with a growing number of organisations firmly embedding corporate social responsibility into their culture.

Importantly, the culture is underpinned by a strong sense of community and belonging of the organisation to the local community.

Practical involvement in supporting and promoting community is frequently demonstrated through involvement in local not-for-profit community organisations.

An essential community service receiving varying levels of corporate support is the provision of disability services. CCI is pleased to have a growing involvement with the disability services sector through recent policy work, particularly in the area of workforce planning.

In working with the sector it is apparent that the delivery of disability services does not appear to enjoy the community value it thoroughly deserves. Many who work in the area do so out of personal commitment and the satisfaction such work can offer. The limited financial reward associated with the work is not a major attraction.

The International Day of People with a Disability on 3 December each year serves as a reminder of the four million Australians with a disability and their substantial achievements and contributions across all areas of society. Particular achievements in sport and academia are perhaps the most publicly recognised. For many Australians with a profound disability, their achievements happen daily through living independently and securing employment.

The provision of disability services appears to have grown from the determination of the parents of children with a disability to have a better life than institutionalisation could provide. From the early to mid 20th century, persons with a severe disability were confined to a hospital-type care facility where independence and opportunity to learn were severely restricted. It is the work of Western Australian pioneers in the area such as Monica McGilvray whose unrelenting work assisted in establishing the Slow Learning Children's Group in 1951 and changing community thinking on the management of persons with a disability.

Progressive thinking on the institutionalisation of persons with a disability led to the breakdown of segregation and greater integration into the community with an emphasis on normal living. Services now focus on supporting parents to care for their children through to supporting the individual to live independently either within open or support accommodation.

Social legislation such as the Commonwealth Disability Services Act 1986, the Disability Discrimination Act 1992, the WA Equal Opportunity Act (1984) and the Authority for Intellectually Handicapped Persons Act (1985) assisted in bringing a greater focus to quality service provision and individual independence.

Disability services in Western Australia are expected to grow. Currently the services are offered by government and not-for profit organisations funded by federal and state governments. Government funding is supplemented by corporate donations and fundraising activities.

CCI's work with the service providers has identified a high level of unmet demand within the industry and the opportunity for corporate Australia to become more involved in a range of areas associated with disability services.

More research is required if the incidence of disability is to be reduced. Underwriting the development of innovative programs and sponsoring awards are but a few ways for industry to become involved. CCI strongly encourages and supports corporate involvement in such a worthwhile community service.

For further information on the provision of disability services and ways for you and your business to be involved contact CCI on (08) 9365 7669 or email alice.mckinney@cciwa.com.

By Anne Bellamy

CCI Health, OSH and Workers' Compensation Director

The substantial benefits to industry of sound, nationally harmonised occupational safety and health (OSH) legislation will be welcomed by industry trying to grapple with up to ten different jurisdictional regimes.

Industry and government leaders have accepted the existence of an enormous regulatory burden brought about by inconsistent OSH legislation. The actual cost of industry compliance with differing jurisdictional requirements has never been comprehensively measured.

Importantly the Council of Australian Governments (COAG) has recognised the urgent need to provide a strong focus on achieving national harmonisation.

Significant variances in detailed requirements across all jurisdictions has never made good sense. Historically the differences were driven by political expediency and the lack of the strong jurisdictional commitment necessary to bring about sound and lasting change.

The call for greater harmonisation has spanned more than two decades. The National Occupational Health and Safety Commission Act 1985 was a significant step in establishing a forum to bring all of the jurisdictions, industry and unions together to seek consistent requirements. The founding work of the original commission, particularly in establishing national standards, advanced the harmonisation agenda, but not to a stage where all of the jurisdictions were prepared to commit totally to the process.

The commission was superseded by the Australian Safety and Compensation Council (ASCC) and the Federal Government’s intention is to supersede the ASCC with Safe Work Australia. The Bill to establish the new forum was introduced into the Federal Parliament in September 2008 and has failed to gain agreement from both houses of Parliament.

The political stalemate resulted from the Federal Government's reluctance to address genuine concerns on industry and union involvement in the construct of national harmonisation. In moving amendments to address the concerns, the Opposition parties and an independent Senator were strong in their endeavours to seek changes to the Bill.

In addition to the establishment of a national forum, Minister for Employment and Workplace Relations the Hon Julia Gillard MP announced a national review into model occupational health and safety laws on 4 April 2008. The terms of reference review required two final reports. The first related to duties and offences including defences and the second addressed the remaining areas relevant to model legislation.

The review panel has delivered both reports, providing a very detailed and complex proposal. The comprehensive set of recommendations is currently being considered by CCI and will be subject to separate and more detailed comments in due course.

The opportunity to achieve sound harmonised systems across all jurisdictions has never been better. Fundamentally all parties support the principle of harmonised systems.

The harmonised system must be guided by two key principles. The first is a demonstrated cost benefit to industry. The second is a fundamentally sound system sufficiently flexible to deal with local issues.

The Federal Government intends to have the changes implemented by 2011. The process requires development of the legislation, consensus agreement by jurisdictions  to the package and finally all jurisdictions adopting the legislation in a way that captures the full intent of the model package. The tight timeframe is aspirational.

Industry is a major player in harmonising Australian occupational safety and health legislation. Relevant industry engagement, commitment to and shared ownership of the harmonisation is critical if the federal, state and territory governments wish to achieve a satisfactory and sustained outcome from the process.

By Anne Bellamy

CCI OSH Director

Terminating employment relationships and workers' compensation

In these uncertain economic times, queries have been raised regarding termination and workers compensation.

The Workers' Compensation & Injury Management Act 1981 ("the Act") expresses a clear expectation that the employer should not terminate the employment relationship of a worker as a result of sustaining a work related injury.

An employer is required to hold a worker's pre-injury position open where reasonably practical for a period of 12 months of workers’ compensation payments (section 84AA of the Act). 

If an employer cannot hold the pre-injury position open then they are required to find an alternative but comparable position in their organisation for which the worker has the necessary skills to perform.

If an employer is unable to hold the original position open and cannot find an alternative position within that 12 month period of time a penalty of $5,000 may be imposed. 

Furthermore, the employer is then required to notify the worker and WorkCover WA 28 days before the termination comes into effect. The employer must use the prescribed form or they will be exposed to a further penalty of $2,000.

The effect of terminating the employment relationship on the workers' compensation can be varied. If the worker is not yet fully fit for work the insurer will refer the matter to a vocational rehabilitation provider to manage the return to work obligations. The worker will also be entitled to ongoing payments of income support until they are fully fit for work, WorkCover orders payments to cease or the worker agrees to payments ceasing.

For further information please contact CCI's workers' compensation adviser on (08) 9365 7415.  For assistance regarding your industrial relations rights please call the Employee Relations Advice Centre on (08) 9365 7660.

WorkSafe WA - ThinkSafe Program 2009

CCI is proud to be a participant in the 2009 WorkSafe WA ThinkSafe program.

The ThinkSafe program provides three hours of free occupational safety and health advice to employers who have less than 20 full time employees in the agriculture, forestry and fishing, construction, health and community services, manufacturing, retail and wholesale, and transport and storage industries.

This service is free, confidential and intended to assist employers to identify and reduce the hazards in their organisation.

Please contact CCI's Lorimer Carroll on (08) 9365 7550 or lorimer.carroll@cciwa.com for an application form.

Workplace smoking regulations

Do you have a designated smoking area in your workplace?  If you do you may now be in breach of the new smoking regulations which came into effect earlier this year.

It is now an offence for an employer to allow smoking in an enclosed workplace. While the definition of an enclosed workplace may be technical and confusing it can be loosely summarised as an area enclosed by a roof and at least 2 walls.

If your smoking area is enclosed it is now an offence to allow smoking in that area.

CCI urgently encourages members to contact its expert OSH advisers on (08) 9365 7415 to discuss the new workplace smoking laws.

By Samantha Rudd

CCI Workers’ Compensation Adviser

The World Health Organisation (WHO) has reported that the world is moving closer to an avian influenza (bird flu) pandemic that covers a wide geographic area and affects a large proportion of the population.

After consultation with the private and public sectors, DOCEP has developed a discussion paper that outlines the labour relations implications of an influenza pandemic for employees and employers.

The discussion paper outlines recommended principles in preparing for and responding to an influenza pandemic. In addition the paper provides answers to key questions about the impact of a pandemic on employment arrangements.

The discussion paper has been released for a two-month consultation period, to allow feedback from individuals and organisations in the community, across the public and private sectors.

For further information or to discuss the document or emergency planning generally, contact Anne Bellamy at CCI on 9365 7591. Please provide responses should to anne.bellamy@cciwa.com or directly to DOCEP atlrsurvey@docep.wa.gov.au by 30 April 2007.