The last four years has seen much speculation about whether
or not we will soon find ourselves subjected to a national
framework for Workers Compensation. It forms part of the wider
debate raging over Federalism. Should the States have the power
to legislate in specific areas...or should the Commonwealth
have equal powers.
Why is it of importance?
For business owners the amount of money paid in workers
compensation premiums is a live and controversial issue. In
Australia currently we have dramatic differences in the level
of premium paid depending on what State you operate in. For
example if you are business in South Australia you pay, on
average, more the $3.00 in every Hundred dollars of payroll,
for your workers compensation premium, while in Queensland you
pay on only $1.15 on average, of every hundred dollars of
This becomes a big issue for Governments trying to lure new
companies to their states to generate employment. The lower the
premium level: the more attractive if it is for the new company
to set up in that state.
But what about the workers?
Just as premium levels are disparate in this country, so too
are benefits for workers. For example in South Australia, if
you are injured at work through your employers negligence, you
have no right to recover Common Law damages for your injury,
however if you were injured in Queensland you can recover
Common Law damages.
Conversely if you are injured in South Australia you will
receive a higher level of weekly benefits than if you were
injured in Queensland.
In many instances, the reasons why the benefits are so
disparate is often a reflection of the financial health of the
scheme underpinning the benefits.
What about the lawyers?
Lawyers too are in a difficult position in this debate, just
like employers and workers. Currently we operate separate
workers compensation schemes in all states and territories and
also have a Commonwealth scheme, called Comcare, initially set
up for Commonwealth Employees. Lawyers are currently trained in
their respective states to provide legal services around the
mechanics of that state's workers compensation
framework. A single national framework could change all that
one day resulting in all lawyers operating under a single
framework. Whether this is a good thing or bad thing will
depend largely on the framework that has been adopted.
Where to from here?
In the recent decision of Andrews v The Minister ("The
Optus Case"), the High Court determined that states do NOT
hold a monopoly to legislate for workers compensation. Moreover
the Commonwealth is free to legislate for a competing scheme to
sit alongside the state schemes.
The current policy of the Rudd Government seems to be
centred on encouraging the states to have a
"harmonised" framework that, although state-based, is
consistent around the country. Only time will tell where it
goes from here.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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