Victorian Trades Hall Council. The voice of Victorian workers since 1856.Victorian Trades Hall Council. The voice of Victorian workers since 1856.

Victorian Workers Compensation Changes - Many Workers Will be Worse Off

By Brian Boyd, VTHC Secretary
 1 February 2010

There was a comprehensive review of the Accident Compensation Act 1985 over the last two years. Peter Hanks QC oversaw the Review with union and employer representatives being involved.

During the review process the unions expressed alarm early in proceedings that some of the proposed changes being put forward would not be acceptable.

The VTHC’s WorkCover Committee has been very active over this period in analysing much of the material in the public domain. In particular, it ran a very critical eye over the government’s official response to the final Hanks Report at the end of 2009.

While some improvements to injured workers’ entitlements are flagged in the new Accident Compensation Amendment Bill 2009, there are still key changes that if finally passed into law, will hurt and negatively impact on many workers injured at work.

It is important the wider public become aware of these issues, especially in an election year.

The following outlines some of those key negative impacts:

a) Extension of the S.82(2A) exclusions for psychiatric injury

· The existing provisions in section 82(2A) that exclude workers who have sustained psychiatric injury from obtaining compensation in certain circumstances will be significantly extended;

· Pursuant to the amendments, a worker who suffers a mental injury caused wholly or predominantly by “management action” will not be entitled to compensation;

· “Management action” will include, but is not restricted to, 14 separate actions which may be taken by management. This includes performance appraisals, counselling, training, investigating or suspending workers;

· The definition of “management action” is potentially far reaching. Any action or decision taken by management can arguably come within the definition of S.82(10) and fall within the exclusions of S.82(2A).

b) Entitlements to weekly payments may cease if a worker resides outside Victoria

· It is proposed that amendments be made to section 114 which will give the Authority the ability to alter a worker’s entitlement to weekly payments of compensation if the worker chooses to leave Victoria.

c) Reducing and excluding compensation for drink driving and drug driving offences

· The proposed Amendments will see the introduction of a penalty system for workers who sustain injury whilst driving in breach of the Road Safety Act 1986 (“RSA”);

· If a worker is injured while driving with a blood alcohol content (BAC) between 0.05 and 0.24 and is convicted of drink driving, payments will be reduced by between 1/3 and 2/3 (depending on the BAC level);

· Compensation will not be paid at all if a worker is convicted of drink driving offences under the RSA and has a BCA of more than 0.24;

· Weekly payments will be reduced by 1/3 if a worker is injured whilst driving and convicted of an offence under the RSA for having a concentration of an illicit drug;

· These amendments may result in workers being punished twice – via the criminal system and the WorkCover system.

d) Return to work requirements

· A greater emphasis will be given to ensuring employers comply with the requirement to assist an injured worker return to suitable employment;

· However the requirement that an employer plan a worker’s return to work does not appear mandatory but rather must be done “to the extent that it is reasonable to do so” from the date of the worker’s incapacity;

· Section 194 (1) will limit the employer’s obligation to offer a return to work plan to 52 weeks only from the date of injury rather than for the duration of the period of entitlement to weekly payments.


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