Today’s correspondent:

… was under the impression that during the NSW/ACT bushfire season 2019/2020 legislation was enacted to protect volunteers from being harmed by employers doing things to their wages or work conditions. The question is ‘an employee who is on workers comp is given permission to help by the insurer as long as what they do complies with the medical certificate; are these legislated protections then applied to the insurer if they then change the wages or stop payments?’ I ask as I feel that this should cover me but I’m being told no the insurer can basically do as they please.

It’s not the case that legislation was passed, legislation is in place, at least in New South Wales. The State Emergency and Rescue Management Act 1989 (NSW) s 60B says:

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part, as a member of an emergency services organisation, in emergency operations to which this Part applies.

This section applies during a declared state of emergency or when the Premier or an authorised officer declares that the section applies to a particular event (ss 60AA and 60D). Section 60C says:

An employer victimises an employee if the employer:

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

As I’ve noted before, the obligation to pay workers compensation is the employer’s obligation. The employer has insurance and the insurance company manages the claim but in effect the insurer is the employer. I will therefore assume that s 60B applies to the insurer as it does to an employer but there are limitations. The insurer cannot dismiss the employee nor alter the employee’s position in his or her employment.  An insurer can however affect an employee primarily by accepting, or rejecting, a claim for workers compensation.

The critical issue has to be because the ‘employee was absent … due to the employee taking part … in emergency operations’. That, and in particular, ‘absence’ is not likely to be an issue for insurers.

Insurers cannot do ‘as they please’. What they do is implement the workers compensation legislation. Where a person makes a claim for workers compensation they are necessarily claiming that they were injured at work and if they are claiming payments for loss of income they are claiming that they are unable to continue to work either at all or at the level or in the type of work that they used to do.  Just because someone claims that something is true does not mean the insurer has to accept that claim. They look into claim and look for evidence to support, or challenge claims. That may feel like they can do ‘as they please’ but it is governed by law.

There are obligations upon everyone, employers, insurers and workers and of course there can be disputes – where an insurer thinks the injury was not work related, or not as bad as the applicant makes out.  There are detailed provisions outlining everyone’s obligations including an insurers right to have, and an employee’s obligation to submit to, medical examinations and on everyone to provide information. Where there is a dispute there are detailed provisions to have decisions, in particular decisions made by insurers to reject claims or reduce compensation payable, reviewed. These are reviewed internally and ultimately by a court.

Discussion

Whenever you are dealing with anyone – police, insurer, your neighbour – you have to consider that not everyone sees an event the same way so one person says ‘you did x’ and you say ‘no I did y’; but whether it was ‘x’ or ‘y’ will not necessarily be obvious just because one is ‘the truth’.  (As I used to say, when I was in practice to client’s who refused to accept a good compromise because they ‘knew’ the truth – ‘don’t expect truth to shine down like a vision from God onto the judge’.). The true position is not always self evidence so we resolve disputes through review processes and evidence.  If an employee on workers compensation turned out with the emergency services that may cause the insurer to think that their injury is not as bad, or their capacity to work, is greater than claimed. They may believe that the work done was not in compliance with any medical certificate or limitations. The employee may disagree and that’s the start of a ‘dispute’.

Whilst I would accept that s 60 means that a worker who was on workers compensation but who did not attend work in a accordance with a return to work program agreed to by the worker, the employer and the insurer (Workplace Injury Management And Workers Compensation Act 1998 (NSW) s 48A), could not be disadvantaged for non-compliance because of his or her absence as part of the emergency services.

However, protection under s 60B (to the extent it can be applied to an insurer) will not apply if the insurer makes a decision to reduce or stop compensation benefits if there is evidence that the worker is no longer entitled to them. That is not ‘victimising’ the employee on the basis of him or her ‘being absent’. It is making a decision in accordance with the provisions of the Workplace Injury Management And Workers Compensation Act 1998 (NSW).

Australia over my life-time has taken a more and more punitive approach to people on compensation or social security – ‘Of all of the factoids bequeathed to us by departing treasurer Joe Hockey, the most dangerous is that the Australian population can be divided into two: “lifters” and “leaners”.’ (Peter Martin, ‘Hockey’s dangerous legacy: We’re neither lifters nor leaners’ Sydney Morning Herald (September 18, 2015).

This attitude and (until COVID-19) the punitive approach to welfare and compensation has meant that more and more law has been passed to ensure that no-one gets one-cent more than they are entitled to – mutual obligation requirements that require people to apply for jobs they’ll never get, cashless welfare card, having to submit to multiple medical examinations, private investigators videoing people trying to function and (until COVID-19) an ‘Newstart’ allowance that committed recipients to live in poverty.  Legislation like the Civil Liability Act 2002 (NSW) was intended to and has made claims for common law compensation harder and reduced the amount of damages that an be paid.  It is not surprising that there are many provisions in the workers compensation legislation to ensure that insurers not only can, but given their duties to their shareholders and clients, must seek to minimise payments hence we see and hear reports of intolerable conduct – close supervision etc. Whether you have to report constantly to Centrelink or an insurer, being ‘on compo’ is no luxury.

Conclusion

To the extent that s 60B might apply to an insurer it would be, as it is for an employer, limited. It involves victimisation due to absence. I suspect an insurer that saw that a person who was able to take active part in an emergency response would be able to point to evidence to show that any decision was not due to the person’s ‘absence’ whilst responding but what their response indicated about their eligibility to compensation.

The claim that the insurer said it was ok ‘as long as what they do complies with the medical certificate’ just opens the door to an argument of what was permitted, and what did the person do. The employee may say they did no more, the insurer may disagree. That can only be resolved through the dispute resolution processes in the legislation.

Remember that a workers’ compensation insurer is not the worker’s insurer. It is the employer’s insurer. And the primary obligation of any company is to its shareholders. They may make money by being an insurer and they have to protect employers by paying out compensation as required by law; but they also make sure they don’t pay out anymore than that which is required by law.