The Return To Work Act Revisited

Issues for employers and unintended consequences

The Return to Work Scheme came under fire late last year for inadequately providing for police injured in the line of duty.

In particular, the Police Association criticised the Scheme because many police officers injured in the line of duty would not satisfy the 30% whole person impairment threshold, yet would still suffer ongoing medical problems and a partial or total inability to return to their pre‑injury duties.

The Police Association’s President, Mark Carroll, said:

“We have a unique role in Australian society.  In the Western world police officers are unlike any other employee, we take a sworn oath to office, which means there are really no safe systems of work.

“When everyone is running out of danger, we are running in … every other emergency service worker has choices in relation to their work, those same choices don’t apply to police officers.”

In February, Industrial Relations Minister, John Rau announced a new Enterprise Bargaining Agreement with the Police Union, which included provision for police officers injured in the line of duty to receive permanent ongoing medical and financial support regardless of the fact that an individual officer does not reach the 30% whole person impairment threshold to be categorised as a seriously injured worker under the Act and, therefore, entitled to ongoing income maintenance and medical expenses.

Mr Rau had previously resisted the Police Union’s campaign, but he appears to have been won over by the arguments put forward by Peter Malinauskas, Minister for Police, who upon stepping into the role made it clear that the Police Union’s demands were “worthy of examination”.

Subsequently Australian Nursing and Midwifery Federation SA’s Secretary Elizabeth Dabars, Ambulance Employees’ Association SA General Secretary Phil Palmer and United Fire Fighters Union SA Secretary Greg Northcott all sought similar consideration for their members who were often confronted with risk of injury as a result of being exposed to dangerous situations.

There can be no doubt that nurses, paramedics and firefighters are often required to place themselves in dangerous work environments as are other emergency service workers and volunteers.

In New South Wales the major reforms undertaken in 2012 to reduce benefits to address the deficit of more than $4.1 billion took effect.  The changes, whilst affecting all new and existing workers compensation claims, did not impact upon:

  • Police Officers, Paramedics and Firefighters;
  • Workers injured while working in or around a coal mine; and
  • Emergency service volunteers.

Claims by those “exempt” workers continue to be handled as though the June 2012 changes never occurred.

It will be interesting to see whether pressure from Nurses, Firefighters and Paramedics will see amendments to the Act or whether, like the police, they will seek to address the issue through enterprise bargaining agreements.

While it seems superficially attractive to maintain the integrity of the Return to Work Act by making provision for a class of worker “injured in the line of duty” outside of the Act it does also pose its problems.

The Return to Work Act has its own dispute resolution process in the South Australian Employment Tribunal.  The Tribunal will have no jurisdiction over a dispute that arises as part of an enterprise bargaining agreement.  How will such disputes be handled?

It is entirely feasible for two workers to be injured in similar fashion in the same incident, with one having the benefit of extended benefits as a result of an enterprise bargaining agreement, while the other has no such benefit because he or she has a different employer.  For instance, a nurse employed in the public sector will often work alongside a nurse from an agency and both would be subject to the same risk of injury.

Extending benefits available to an injured worker through an enterprise bargaining agreement is not unusual.  Extended cover for journey accidents is not uncommon.  Some enterprise bargaining agreements provide for income maintenance to be maintained at the 100% rate rather than “stepped down” after the period mandated by the Act.

It is not difficult to envisage greater use of the enterprise bargaining process to obtain increased benefits beyond those existent in the Return to Work Act for employees in other industries, particularly during a period of low wage growth.

The latest statistics available from Safe Work Australia reveal that employees in agriculture, forestry and fishing had the highest incidence of serious claims.   The incidence is about double the national average.  Similarly, transport, postal and warehousing industry employees were only marginally behind making 19.1 serious claims per 1000 employees.

Labourers, machine operators and drivers all have high incidence rates of serious claims.  A reasonable argument could be raised on behalf of workers in these industries which have high incidence of serious claims that they too have been “injured in the line of duty”.

It will be most interesting to see whether the deal with the police has opened the door to greater use of the enterprise bargaining process to achieve benefits that are not available under the Return to Work Act and even more interesting to see how the inevitable disputes are managed.

For more information, please contact:
John Walsh

John Walsh
Director
p.  +61 8 8124 1951
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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