Workers with psychological injuries likely to be punished again

The Comcare Scheme has been subjected to a number of reviews since Julia Gillard was Minister for Workplace Relations in 2007. A first review commissioned by Julia Gillard was released in 2009. (http://docs.employment.gov.au/node/28616)

A second review was commissioned by the then Minister for Workplace Relations Bill Shorten was released in 2013. (http://docs.employment.gov.au/node/31849).  Our previous blog referred to the current Bill amending the Safety Rehabilitation and Compensation Act.

Unfortunately many of the changes recommended by previous reviews that were positive for workers have never been implemented. Instead we have seen a continuous process which commenced in 2006 under the then Howard Government to reduce worker’s rights. This is particularly so in the area of psychological injuries. The Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (SRCOLA) introduced the concept of “reasonable administrative action” which allowed claims for psychological injuries to be excluded if the injury had been contributed to by “reasonable administrative action undertaken in a reasonable manner”.

Unfortunately, this section was applied to find that if any “reasonable” action had contributed to a psychological injury in any way, then the worker’s claim for compensation would fail. The Full Federal Court (FFC) in Hart v Comcare [2005] FCAFC 16 (11 March 2005) (Hart) ruled if one or more of the contributing factors (in the causation or worsening of an employee’s injury or disease) falls within the meaning of an exclusionary provision, an employer will not be liable for the condition.

It is the nature of the vast majority of psychological injuries that they develop over a period of time. Often workers will (as a result of previous trauma) become “sensitised” and may appear to “over react” to what would in the normal course of events not be regarded as an “unreasonable” action on the part of the employer. Unfortunately Hart means that the majority of claims involving psychological injuries will fail simply because in the history of any long running claim, there is likely be at least one “reasonable” action which in a highly charged environment involving work place stress or bullying which will contribute to an injury.

Indeed the Hanks review recognised the harshness of the current regime and recommended that the relevant test should be that the “reasonable administrative action” should be the significant contributing factor to an injury, not just a factor, for a claim for psychological injuries to fail. This recommendation was not implemented by the Labour Government which commissioned the report and recent media reports suggest that it is highly unlikely that the current government would take up this recommendation which would ameliorate the harshness of the current regime when it comes to workers with mental health injuries.

A recent article in the Sydney Morning Herald suggests that the Abbott government is planning a fresh assault on the Comcare scheme planning changes that will “attack the most controversial aspects of the Commonwealth's schemes – payouts for psychological injuries, compensation for life, and taxpayer-funded access to dubious therapies.” (http://www.smh.com.au/national/public-service/public-service-compo-culture-in-governments-sights-20140929-10ncyf.html#ixzz3ElyMoIpP )

Unfortunately making it more difficult for workers to claim compensation for psychological injuries is not a solution to the increased incidence of workplace stress that we are seeing. Rather than punishing people who are becoming ill because of work related stress and bullying, we should be looking at the causes of these injuries and why our workplaces are making people ill. In addition, depriving workers of their compensation rights just means that people are shunted onto Centrelink and Medicare and that employers who should be protecting their people escape liability for injuries that are ultimately funded by taxpayers.

Further, a sympathetic rather than a punitive regime is more likely to see workers able to return to work. One proposal which the Federal Government has failed to implement over many years is to develop appropriate inter agency redeployments for people who have suffered work related stress because it is often the case that whilst a worker who has been bullied cannot return to the workplace where the injury occurred, they might flourish in another workplace.

Ironically, the Federal Government undertook an investigation into bullying in the workplace and on 27th June 2013 introduced changes to the Fair Work Act allowing the Fair Work Commission to deal with workplace bullying. However, how useful is this process to be if employers know that workplace bullying will not cost them. In other words, we know that change is more likely to occur where the hip pocket nerve is affected. Whilst the amendments to the Fair Work Act allow a penalty to be imposed on an employer who fails to stop the bullying, these penalties are modest. This process also fails to deal with situations where the bullying has already occurred and injured workers end up on the scrap heap with no recourse to compensation.