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Comcare Alert

Impending national workers compensation and work safety laws and the implications for business

| Published by Andrew Klein

The Government, in 2014, introduced reforms which seek to expand access for national employers to compensation and work health and safety coverage under the Comcare Scheme.

As things stand under the current laws only former Commonwealth authorities and companies in competition with those authorities are able to self-insure under the Comcare scheme.  There is also no generally available option for national coverage under the Commonwealth Work Health and Safety Act 2011 (the WHS Act).

The Bill tabled to give effect to the Government’s planned reforms is the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (the SRC Amendment Bill) which will allow any company operating in two or more states or territories the opportunity to apply to self-insure under  the Comcare scheme.

The Bill has already passed the House of Representatives and is currently in front of the Senate. 

Andrew Klein, National Comcare Specialist at Russell Kennedy Lawyers, told the press that the implications for national business if the Bill passes will be far reaching.

Businesses that employ staff across a number of states or territories are currently required to comply with up to six different workers compensation and work health and safety (WHS) regulatory regimes. It’s a complicated, red-tape heavy system.

Klein believes, “the passing of the SRC Amendment Bill will allow businesses that operate in more than one of the country’s states or territories to significantly streamline their workers compensation and WHS systems by self-insuring under the Comcare scheme.

This initiative will have implications for the majority of large national employers in Australia and represents the largest reform associated with employment and the workplace undertaken by the coalition government to date.  For those employers who opt in, the primary advantage will be that they will be operating under one nationally consistent workers compensation and WHS regime governed by a single national regulator."

Klein consequently expects there to be strong interest in, and take up of, self-insurance under the Comcare scheme from a number of Australia’s largest companies. 

The Government seems to agree with Klein, stating in an Explanatory Memorandum to the Bill that: "it has been assumed that one in five national employers may move to the Comcare scheme for coverage of workers' compensation and WHS".

Klein however cautions that self-insurance under the Comcare scheme will not be right for all multi state and territory employees, saying: “whether moving to the Comcare scheme will provide significant advantages to an employer will depend very much on the nature of the business it is involved in and the demographics of its workforce and the kind of claims it is generally required to deal with.  There are also likely to be significant start-up costs associated with the transition.”

Employers are consequently encouraged to seek advice in the first instance as to whether the Comcare scheme may be the right fit for their company.  If it appears that transitioning to self-insurance under the scheme may have benefits for an organisation a feasibility study can be conducted, generally relatively quickly and inexpensively, to confirm that this is the case.   

For further information on the implications for businesses Andrew Klein has recorded a recent seminar on the topic Amendment Bill - Is Comcare attractive now? The three short videos can be watched here.

 

Summary of Potential Pros and Cons of the Comcare Scheme for employers

Advantages

Disadvantages

Uniformity across all jurisdictions in respect of Workers Compensation – ONE SCHEME = Clarity and Simplicity

 

Adopting Comcare’s administrative policies and procedures may hamper an organisation’s ability to develop and implement its own tailored programs

Ability to standardise claims management systems

Comcare scheme is currently  more generous in both monetary amount and the period over which benefits are provided (a ‘long tail’ scheme) than state based schemes, although future reform may change this.

Reduction in ongoing compliance costs (single costs for bank guarantees, annual fees/levies, licence fees, actuarial and audit costs)

Availability of payment of normal weekly earnings up to 45 weeks under Comcare may be a disincentive to employees to rehabilitate and return to work during that time

Single dispute resolution process/management (consistency)

Exit fees from existing schemes may be prohibitive

Allows ‘related bodies corporate’ to self-insure together under a ‘group licence’ thereby allowing for shared and consistent claims, rehabilitation and return to work, and work health and safety systems within the group (with shared costs)

Potentially big set up/start-up costs (eg, systems need to be in place and/or implemented before application is made)

 

 

Potential uncertainty with regard to the ‘shape’ of the Comcare Scheme in years to come (eg, change of government, adoption of recommendations for review)

 

Longer dispute resolution times – Administrative Appeals Tribunal (almost half as many Comcare claims resolve within 9 months than in other jurisdictions)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Andrew Klein:

Andrew brings extensive experience in litigating and providing high level advice to Comcare and private sector employers in relation to compensation claims made under the SRC Act. Andrew has acted for Comcare in relation to disputed claims in the Administrative Appeals Tribunal (AAT) and the Federal Court over a number of years (2008 – 2014), including having carriage of number of high profile, sensitive and complex matters. 

Additionally, he has also spent significant periods on secondment with Comcare as a team leader within its Administrative Appeals Litigation team.  During his time on secondment with Comcare, Andrew had overall responsibility for, and managed, a team of officers, each of whom had responsibility for dealing with (in conjunction with external legal services providers) upwards of eighty compensation claims that were the subject of appeals to the AAT. 

For further information on the implications for businesses Andrew Klein has recorded a recent seminar on the topic Amendment Bill - Is Comcare attractive now? The three short videos can be watched here.