Guy Barnett (Tasmania, Liberal Party) Share this | Hansard source

Thank you, Mr Acting Deputy President; I am very happy to address my remarks through the chair.

We have seen well over one million AWAs signed since 1997 when they came into being. And in my home state of Tasmania, for example, those on AWAs are earning 48 per cent more than those on award conditions. So there is only one party that wants to cut wages in this country, and that is the Labor Party. There is only one party that wants to remove choice and dud small business by reintroducing the unfair dismissal laws, and that is the Labor Party.

We have had, I think, seven speakers from the other side now get up and wax lyrical with respect to the motivations of the Howard government for this legislation and for the Work Choices legislation which has delivered so much. Remember that the Labor Party, with the unions, said that Work Choices would cut wages and lower the number of jobs available. That is exactly what they said. And what has happened? As I have said previously in this place, the government has delivered. The economy is stronger. You have a higher number of jobs and you have increased wages. Through you, Mr Acting Deputy President, to Senator Lundy: the facts are on the table, and, please, consider the facts before you speak in the chamber on these matters and attribute motivations to the government which are false—entirely false. And I would say that to all the senators from the other side who have spoken in this debate and attacked the government with respect to this bill.

We in the Howard government have a policy of continual improvement, and we respond to community concerns. We respond to reports like the Productivity Commission report of March 2004, which specifically recommended that coverage for journeys to and from work not be provided and, for recess breaks and work related events, should be restricted to those at workplaces and at employer sanctioned events. None of this has been said by the other side—not even acknowledged. Why would you not acknowledge it and then rebut it and say, ‘That is wrong; they said the wrong thing’?

The motivation behind this legislation is one of continual improvement. I want to speak a bit further to that. It is consistent with our policy of running a very strong economy and doing the best we can to ensure that working men and women have higher wages and more jobs and opportunities to be the best that they can be and to care for their kids and provide them with the best possible opportunities for their future.

I have happily taken some of the responses from the other side but I want to address the primary reasons for this amendment bill, which is to maintain the integrity of the Commonwealth workers compensation scheme and to facilitate the provision of benefits under the scheme.

With you, Mr Acting Deputy President Marshall, as deputy chair of the Senate Standing Committee on Employment, Workplace Relations and Education, under the chairmanship of Senator Judith Troeth, we considered this legislation at two hearings in Melbourne and one in Canberra. As a government senator, together with Senator Troeth and other government senators on that committee, I reported on and recommended support for the bill. There were some administrative and technical matters that needed to be considered and at times there were complex discussions and debate, but let us have a look at the fundamentals.

The scheme has come under pressure in recent years from increasing numbers of claims, longer average claim duration and higher claim costs. This is in part—and this was put to our committee by the department—as a result of court rulings that have expanded the scope of the scheme beyond what was initially intended by the previous government and agreed to by parliament. The main amendments contained in the bill seek to address those particular issues.

Two main definitions are amended in the bill. These are, firstly, the definition of disease and, secondly, the definition of injury. They are of central importance to the Safety, Rehabilitation and Compensation Act and they have been amended to strengthen the connection between the employee’s employment and the employee’s eligibility for workers compensation under the scheme. The bill does this in two ways. Firstly, it amends the definition of disease to ensure that Comcare is not liable to pay compensation for diseases which have little, if any, connection with employment. The amendment requires that an employee’s employment must have contributed in a significant way to the contraction or aggravation of the employee’s ailment before compensation is payable. This replaces the current test, which requires a material contribution by employment to the disease before compensation is payable.

When originally enacted—by the previous Labor government, I might say—it was understood that the ‘material contribution’ test required an employee to demonstrate that his or her employment was ‘more than a mere contributing factor’ in the contraction of the disease. However, since 1990 the courts have read down the expression ‘in a material degree’ to emphasise the causal connection between the employment and the condition complained of rather than the extent of the contribution itself. Although more recent decisions of the Federal Court, in particular the full court’s decision in Canute v Comcare, have stemmed the tide, the fact remains that there is still conflicting judicial authority on this point. The amendment restores the original legislative intent. That is a key point.

The second point is that the bill amends the definition of ‘injury’ to expand and update the existing exclusionary provisions to prevent workers compensation being payable in respect of an injury—usually a psychological injury—arising from legitimate administrative action by management. This would include, for example, reasonable appraisal of the employee’s performance and reasonable counselling action taken in respect of the employee’s employment.

The bill also amends the provisions that set out the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment. Specifically, the amendments will remove coverage for injuries sustained by employees during journeys between home and work and during recess breaks undertaken away from the employer’s premises; for example, lunchbreaks during which an employee leaves the employer’s premises to go shopping.

At this point I will refer again to the Productivity Commission report of March 2004, National workers’ compensation and occupational health and safety frameworks. I will not go through it, but I alert the Senate to that report because it recommends change in accordance with the government’s policy and in accordance with the legislation before us in the Senate. This is something that has totally escaped the knowledge or understanding of the other side in their discussions and debate.

The fundamental, common-sense principle underlying the Productivity Commission’s recommendations was that employers should be held liable only for conduct that they are in a position to control. That is what the commission said. Employers cannot control circumstances associated with journeys to and from work or recess breaks taken away from the employer’s premises, and it is not appropriate for injuries sustained at these times to be covered by workers compensation—that is, the employer.

Again, the other side in this debate have not even mentioned—it has escaped my attention if they have—the positions of the various state governments around Australia with respect to their workers compensation schemes. You will recall, Mr Acting Deputy President, that at the hearings we had a matrix prepared for our committee which set out the positions of the various state Labor governments with respect to covering journey claims. This is referred to on page 6 of the Senate committee report, which states:

Half the states and territories cover journey claims within their workers compensation schemes, even though there is no obligation to provide such coverage.

We then saw which states provided the coverage and which did not. The compensation schemes of Victoria, Western Australia, South Australia and Tasmania do not cover travel to and from work; those of New South Wales, Queensland, the ACT and the Northern Territory do cover it. So in this chamber we cannot put to the Australian people that this is a one-off and that it is motivated by ideas of stripping away rights and entitlements when we are following through on a Productivity Commission report and we are consistent with many of the state and territory Labor governments.

If you have your views, and you are so fixed in your views, then I would like to know what those senators in this place from Victoria, Western Australia, South Australia and Tasmania have said to your state Labor governments about your positions and whether you debated this matter with them before you walked into this chamber and debated it with us. It is a little bit like the pot calling the kettle black. Some people would call it hypocrisy.

This government, as I said before, has a policy of continual improvement and a policy to listen. The government has listened and it has indicated that it will support certain amendments as a result of listening to the Senate committee inquiry—and I am sure you will be pleased to hear that, Mr Acting Deputy President Marshall—and reading the submissions that were put to that inquiry. We had 28 submissions put to the committee. I just want to flag the amendments now. They will ensure the continuation of workers compensation coverage for certain work related journeys—in particular, travel between an employee’s place of work, but not his or her residence, and a place of education or a place for the purposes of, or association with, treatment or rehabilitation connected with a work related injury.

The bill will amend the method for calculating retirees’ incapacity benefits to take account of changes in interest rates. The change in the interest rate provision would result in increased benefits payable to retirees. I know this is a matter that the good Acting Deputy President had a particular concern about, and I think that has been taken on board. The department responded to many of the questions put by Senator Marshall at the Canberra hearing, as I recall, and the government no doubt considered those matters together with the submissions that had been received and the views of the department and of others. It is a tricky area, and I certainly do not profess to be an expert in it, but I want to draw that to the Senate’s attention. I thank those who made submissions and also thank the government for listening and being willing to improve it even further.

In terms of the proposed amendments, the scheme continues to cover employees while they are undertaking work related studies or receiving medical treatment or rehabilitation services in connection with a work related injury, and a proposed amendment will restore coverage for journeys between work and these places. That is consistent with the theme that there is a connection to the work, so why would you not want to support such an approach? Amendment (2) would have the effect of extending the workers compensation coverage under the act to any injury sustained in the course of travelling between the employee’s place of work and a place of education in accordance with a condition of the employee’s employment or at the request or direction or with the approval of the employer. Again, there has to be a connection: the employee, at the direction of the employer, undertaking such education or training and going to the particular facility or place to fulfil those requirements. So in a sense it continues our government’s support for employees engaged in ongoing learning and education.

Amendment (4) is also an important one. It will have the effect of extending workers compensation coverage to any injury sustained in the course of travelling between the employee’s place of work and a particular place for a number of purposes, which I will outline. Firstly, the purpose is for obtaining a medical certificate for the purposes of the act. This came up during the course of our inquiry, there was some debate about it and there is clearly merit in that matter being covered. We certainly support that. The other purposes are: secondly, receiving medical treatment for a work related injury; thirdly, undergoing a rehabilitation program provided under the act; and, fourthly, undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under the act. Retaining coverage for these journeys ensures the Commonwealth scheme remains in line with the seven jurisdictions which cover such journeys. So, again, the state Labor governments have similar conditions in place, and our conditions under the Commonwealth are consistent.

I will conclude my remarks there and thank the Senate for its time. The government’s policy of continual improvement is being acted out in this chamber today. We have listened and we have acted. That is exactly what we are doing.