The NSW Government has introduced significant changes to the workers compensation scheme in NSW. It is beyond the scope of this blog to identify all those changes, I’m sure there are ‘workers compensation’ blogs that will be able to give us all the details.
What is of note here is that the original bill, the Workers Compensation Legislation Amendment Bill 2012 said:
25 Police officers,
The benefits amendments do not apply to or in respect of an injury received by a police officer (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.
The Bill amends the ‘Workers Compensation Act 1987 and other Acts with respect to the reform of the NSW workers compensation scheme.’ The effect of Schedule 12, Clause 25 (above) is to create two workers compensations schemes in NSW. One for police, who get all the benefits on the Workers Compensation Act 1987 as it was on 21 June 2012; and one for everyone else.
Following protests and strike action by firefighters employed by NSW Fire and Rescue, last minute changes were made as the Act went through the Parliament. The Bill as passed now says:
25 Police officers, paramedics and firefighters
The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.
That’s all well and good if we’re happy for there to be a two tiered workers compensation scheme in NSW but it has its own problems; ‘paramedic’ and ‘firefighter’ are not defined. As has been noted elsewhere on this blog, paramedics are not registered health professionals so it’s not at all clear who is a paramedic. One day a court is going to have to decide that issue given this law. A person who has a degree in paramedic and works as an industrial health care officer could well be a paramedic, as could someone without that degree? And why should they get the old scheme when a nurse, also working in an industrial health care setting will not? What about a trainee ambulance officer? What about firefighters? Again that phrase is not defined so a person who works as a firefighter but not for NSW Fire and Rescue is surely a firefighter. What if they do those tasks as only part of their job?
This scheme will no doubt lead to inconsistencies; imagine a rescue helicopter crashes, on board are the pilot, a doctor, a paramedic and the patient and all die. All killed in the same accident, the same ultimate injury but at least three compensation schemes in place, the pilot and the doctor are under the ‘new’ scheme, the paramedic the old scheme and the patient, who is not ‘at work’ will have to show that someone, the pilot or the helicopter operator was ‘negligent’. Consider also the recent case where a paramedic was killed whilst working from a rescue helicopter. If that accident happened now, the paramedic would get a different level of compensation than a doctor or a crewman doing the very same job.
Compensation for personal injuries depends more on ‘status’ (are you an employee, a customer, a road user, a patient) much more than it depends on what happened and what your injuries are. This new scheme compounds that problem.
There are two objections here. One is that we have a two tiered scheme in the first place. According to the ABC:
Shadow treasurer Michael Daley says the legislation goes to far.
“We now have the most harsh workplace injury laws in all of Australia,” Mr Daley said.
“They are drastic. They will hurt ordinary people.”
Rather than have the ‘most harsh workplace injury laws in all of Australia’ except for police, paramedics and firefighters, it would be better not to have the ‘most harsh workplace injury laws in all of Australia’; for anyone. If the changes are needed there is little in principle reason why any class of employees should be exempt. Either these changes are needed, or they are not.
The other objection is that exemptions like these are pushed through, quickly and without being properly considered. There is no doubt that anyone who thinks they are a paramedic, but who is not at the time of their injury, working for NSW Ambulance may well have to go to the Supreme Court to see what ‘paramedic’ means, the same for fire fighters.
Michael Eburn
22 June 2012
Reblogged this on The Left Hack.
Disappointing to see that nurses are also not exempt from these changes,especially seeing as they were the public face of the advertising campaign sponsored by the unions.Then again, who else should be exempt? In my opinion ,everyone!
Thankfully in NSW we have an upper house that can operate as a legitimate house of review.
Geoff, I wouldn’t place too much hope in the upper house. That’s where the amendments for firefighters and paramedics came from, so if you think they’re a good thing that’s good, the upper house did provide some review, but the Act has now passed so if you think someone should point out the problems these amendments will cause, and hopefully do something about them (such as scrap the scheme all together) unfortunately there is no further opportunity for review by the upper house, unless someone proposes an amending Act (and they only get onto the Parliamentary floor if the government allows it). I do note that the amending Act provides that it is to be reviewed after 2 years (see s 27 of Schedule 12 of the Amending Act). It may be that people injured between 22 June 2012 and 21 June 2014 will simply be worse off than people injured outside those times.
Michael Eburn.
How do RFS staff come under this? Could they be defined as “firefighters” or that isn’t possible?
for example an Inspector employed as a district L&D officer (not a “firefighter,” while being an employee of a single-purpose firefighting agency) takes on the role of Ops Officer in an IMT, and does a run in a chopper with a volunteer AOB (air observer) to evaluate the situation. If there’s an accident, the AOB and the Ops Officer will receive different levels of compensation, right? The RFS volunteer is covered under the Worker’s Comp (bush fire, emergency and rescue services) act 1987, the RFS staff member under the new Workers Comp Amendment Bill 2012, right?
Or does it come down to who has the best lawyer?
Concerned
Not only is there no easy answer to your question, there is in fact no answer at all. Firefighters are exempt from the changes; someone will have to decide what ‘firefighter’ means and when they do, then we’ll know. Arguably the L&D (Learning and Development) officer is a firefighter; they are employed under a relevant award and they probably have a uniform and if they can be asked to step up to an IMT (Incident Management Team) role then they are operational and so presumably have the training to fight fires. On the other hand, that is not what they are employed to do so they are not a firefighter. The issues arises if after the accident, the workers compensation insurer denies that they are a firefighter and they want to challenge that decision. There are processes to do that up to and including court action. Then the lawyers would present both arguments and the judge would have to decide what ‘firefighter’ means. Is it limited to people who’s primary task is to actually fight fires, or anyone employed by the fire service, or anyone employed as a uniformed officer? Is it only members of NSW Fire and Rescue (because when the Parliament made the changes that is who they had in mind given they were on strike in the street outside) or any fire fighter including members of RFS and private fire security agencies? If it applies to the L&D officer, because fire fighting might be part of his/her duties, what of the security guard who is also required to fill a fire fighting role? There is simply no answer to those questions.
Rushed ad hoc changes to law make these problems. the problem with arbitrary lines is someone always falls, just, on the wrong side of them.
As for volunteers, yes they are covered by the WORKERS COMPENSATION (BUSH FIRE, EMERGENCY AND RESCUE SERVICES) ACT 1987 (NSW). Many parts of that Act define a right to compensation by reference to the Workers Compensation Act 1987 (NSW) other parts do not, setting up their own, similar but different, and generally more generous, scheme. I have not yet had the chance to look at those Acts to see what impact the changes will have on volunteers but your point that the paid officer, and the volunteer firefighter, will be under different schemes, is correct.
Michael Eburn
Rather than have to read the Bill, as introduced to the Parliament, and then the upper house amendments and try to put them together, you can now access a copy of the Bill as approved by both houses, that is with all the amendments put in place. See http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/131a07fa4b8a041cca256e610012de17/5d4f0aa2626487d8ca257a22001b5a55/$FILE/b2012-030-d18-House.pdf
For commentary on the effect of the changes for people other than police, firefighters and paramedics, see http://www.abc.net.au/unleashed/4101118.html?WT.svl=theDrum
The inconsistencies have started. I work for a company that employ fire and rescue staff on a 10/14 roster. One of our station officers had an accident on his way home after. 14hr night shift. Workers comp denied by insurance company as he is not an authorised fire fighter defined by the act. We required to have the same quals. In some aspects more than gov fireys and potentially do the same job. The union he covered by (FBEU) have started to look at it but doesn’t Sound like it will get off the ground. 4 months down the track he is still in a wheel chair after operation after operation and slowly improving but being forced to use sick leave.
I always thought that in the laws of Australia is that every human is to be treated the same and don’t get me wrong police etc do a great job but so does every other Australian keeping this great country going.
The concept of the rule of law is that we are all bound by law, no-one because of their power or position is exempt the law so in that sense we are all equal, but the law as written by parliament does not have to treat everyone equally nor does it. For years we had a white Australia policy, today if you arrive seeking asylum by boat you’ll face mandatory offshore detention but not if you arrive by plane. Persons over 85 (in NSW) have to do a regular driving test when those under that age do not. The Parliament can make different laws to treat different people differently. The problem here is that there is no sound reason for the difference and it makes the system very complex. Today in NSW there is a separate workers compensation scheme for police, fire fighters and paramedics which suggests the policy is not properly thought through and makes the process very difficult for anyone trying to work out what the ‘old’ scheme (that continues to apply to this small class of people is, you can’t just look at the ‘current act’ as that was amended in 2012, you have to ‘undo’ those amendments) and it doesn’t define who is a firefighter or a paramedic. It’s clear policy on the run.
Interesting read. RMS Traffic Emergency Patrol crews are not in this either & they have one officer killed & a number of others seriously injured.