It was 9:30pm. We were walking out of the bear pit, the NSW Lower House. We had just completed a Mock Parliament, with Young Labor and Young Libs fighting it out on everything and nothing to do with young people.
I was on the Young Libs’ side. In those days, the allegedly moderate “Group” faction ruled the Young Liberal roost. Unlike today, the conservative opponents of the Group were more sensible. They tended to support tolerance, multiculturalism and free enterprise. They were not interested in turning the Liberals into a sheltered workshop for ex-One Nation types.
Young Joseph approached me. He was my height, though a little less chubby than me. He was from the Western Suburbs. I had seen him before at various polling booths. He recognised me.
“Mate, what is an articulate wog like you doing in the Liberal Party? Come and join us.”
“But Joe, I am socially conservative. And I am not extremely fond of unions”, I replied.
“Mate, in the ALP Right, we f#ck the unions! They are our biggest enemy. I heard what you said back in there. I reckon I am more right wing than you. If I ever get into Parliament, I’ll make sure unions get trodden on.”
I did not see Joseph much after that. At least, not in person. He went on to do bigger and better things. But Joseph’s message made sense.
The biggest single enemy of NSW workers has been the ‘Centre-Unity’ faction of the NSW Branch of the Australian Labor Party. The ‘Terrigal’ sub-faction in particular has shown a disdain to workers that would make any employer organisation jealous.
The NSW ALP government led by Bob Carr has pulled off legislative and policy stunts for employers and big insurers that few Liberal premiers ever had the guts to do. This piece will focus one of these stunts – the mutilation of injured workers’ rights.
The Workers Compensation Act 1987 forms the legislative bedrock of the system compensating most workers for work-related injuries in New South Wales. The WCA sought to replace a previous Act dating back to 1926. The 1987 Act sought to regulate the amounts of compensation workers could receive without having to prove negligence or some other breach by their employer.
The 1987 Act re-established a table of maims. Section 66 of the Act provided a formula for calculating the maximum and percentage injuries a worker could receive for injuries to various parts of the body. If the worker’s injuries reached a certain threshold, Section 67 provided that the worker could claim an additional lump sum for “pain and suffering”.
The reward for workers using this system was that their award was not contingent upon their proving anyone was or wasn’t at fault (usually including themselves). Further, workers did not have to pay their legal fees. Indeed, it was forbidden for lawyers to remove any amount from the worker’s award to pay for fees. In return for sacrificing a lower amount, workers could have a solicitor and barrister represent them. The system ensured a level playing field.
Allegedly, the system also ensured that employers were facing massive workers compensation premiums. Insurers were also having to pay 2 sets of legal fees. The fact that insurers were making monster profits tended to be ignored. Instead, insurers went on a massive lobbying campaign with the “big end of town”. Their campaign converged on the Sussex Street headquarters of the ALP.
Bob Carr was expecting them. He lent them his ears without having to cop an earful. Together, the Carr government and the insurers invented the spin. The mantra was simple – blame the lawyers!
It is said that lawyers will be the first against the wall when the revolution comes. And when Bob Carr’s NSW Right revolution moved from Sussex Street (and a Terrigal holiday house) to Macquarie Street, both workers and lawyers were thrown against the wall. Workers were provided with some protection via bullet-proof clothing. Lawyers were not.
And what was the bullet-proof clothing for workers? A new system of compensation that has seen lump sum awards for workers slashed by over 20%. The table of maims has been replaced by an unusual animal known as “Whole Person Impairment”. The Court has been replaced by the Workers Compensation Commission. Differing medical assessments on the extent of a workers’ injuries and disabilities are no longer determined by a judge but by a medico-legal specialist drawn out of a panel. Once that specialist makes an assessment, there are few grounds for appeal.
Lawyers still get their fees paid, but at a reduced rate. Barristers are rarely involved in the process, except perhaps as arbitrators contracted by the Commission.
The result? Workers with serious injuries receive awards at least 20% lower than what they used to get. They do not have the benefit of the kind of representation they had under the old system.
Meanwhile, workers compensation premiums are largely unchanged. Employers are still complaining. But the insurers are smiling and counting their extra cash.
And what were the unions doing when these changes were announced? Were they campaigning and threatening strike action and making loud noises? Of course they were. But all to no avail.
Joseph was write all along. The unions and the workers were well and truly f#cked.
(The author is a Sydney lawyer who could see the writing on the wall and jumped out of the workers compensation jurisdiction. He now runs a practice focussing on employment and industrial law.)
© Irfan Yusuf, 2005
