Can the ACT create a better value workers' compo scheme?

Discussions around the new workers’ compensation arrangements for ACT public servants have until at least mid-April left to run. But Workplace Safety and Industrial Relations Minister Mick Gentleman already has some ideas about the way forward.

After ditching the Commonwealth Comcare scheme due to its high cost, the proposed design for an independent ACT fund would put WorkSafe ACT in charge of the regulation of both work safety and workers’ compensation.

“Bringing them together would allow the Work Safe inspectorate to provide better co-ordinated and holistic education, awareness and compliance services and create efficiencies, for example prevention and injury management services could be provided simultaneously by the same inspector,” Gentleman told The Mandarin. “They would also develop and apply a more practical and detailed knowledge of the ACT public sector than is currently the case.”

He added that bringing the public sector into the existing WorkSafe scheme would be a good value option: “For example information technology services, scheme oversight, regulatory support and disputation services will operate across the ACT private and public sectors, allowing for greater economies of scale, the sharing of expertise and improved service delivery.”

Gentleman also proposes to have the insurance arrangements managed on behalf of the ACT public service by the central Chief Minister, Treasury and Economic Development Directorate, to “ensure equitable and consistent service standards across the entire ACT public sector, irrespective of the person’s employing agency”.

Federal Employment Minister Eric Abetz told a recent Senate Estimates hearing his government will soon fix “some of” the problems with Comcare that have led the ACT government to remove its 20,000-strong public sector workforce from the federal scheme, which it is part of for historical reasons. But even if the government can curb Comcare’s expensive premiums and dock its cumbersome “long tail”, Gentleman believes a bespoke ACT system will better suit the territory’s public sector workforce, which includes a higher proportion of front-line workers than the Commonwealth, as do other states and local councils.

“By establishing the scheme in the ACT’s own legislative jurisdiction, the government will be in a position to more strongly influence scheme resourcing and regulatory design, in a manner that is more responsive to the needs of the ACT workforce,” he said.

Personal injury lawyer Phil Schubert, who is engaged in the process as president of the Australian Lawyers’ Alliance ACT branch, says there’s definitely value in having oversight of workers’ compensation and workplace safety brought together instead of split between Comcare and WorkSafe ACT — with one caveat.

“The only risk that needs to be managed is … having WorkSafe be the regulator as well as a participant in the scheme,” he told The Mandarin. “So that is where you’ve got work safety issues in ACT government departments, but it’s an ACT government department that’s the prosecuting authority as well. That’s something yet to be ironed out, but I don’t think that’s a reason not to get rid of this split-function issue between Comcare and the territory, where there’s potential for communication not getting through and those sorts of things.”

Schubert says there’s a “loose proposal” to create a new, separate set of rules only for the ACT public service, but the Lawyers’ Alliance doesn’t see any need.

“Our position is that really they should be folded into the existing private sector scheme, which works well … There’s an existing scheme there that is ready and able to be used, and that would have the benefit of improving access to treatment and compensation, and common law damages where the employer’s done the wrong thing and that can be proved in court,” he explained.

Schubert supports Gentleman’s suggestion that public servants be able to use existing dispute resolution services including the territory’s Industrial Court, “a pretty good system” which he says has been successful in speeding up resolution of the more prickly cases that seem to drag on under the federal framework.

The more complex or disputed cases that inevitably arise represent Comcare’s main stumbling block, according to Schubert, because it pursues “black-and-white” answers and has no way of settling claims with a lump sum. “Often those cases need a third-party dispute mechanism and I’m glad to hear that the minister seems to be putting his weight behind using the existing Industrial Court system,” he said.

Abetz has indicated he’s happy for the ACT to part with Comcare, which requires him to revoke a declaration that its public service be treated as a Commonwealth agency under the relevant legislation, and Comcare is treating the situation the same way it does when a federal body is privatised and seeks to exit.

Only hours after the ACT publicly announced its intention to leave, Comcare CEO Jennifer Taylor told the Estimates committee last Wednesday:

“It includes discussion and negotiation which occurs between agencies about whether they are taking all of the claims, does Comcare still have some responsibility for the existing claims and, if so, what are the arrangements regarding the ongoing liabilities that need to be put in place.”

Taylor said Comcare had already been having discussions with the ACT prior to the announcement to negotiate the territory’s final liability. That would depend on what new arrangements it decides upon and when they would take effect, she said, but added her team was “quite a way down the track in determining what that potential liability could be”.

The exit of the ACT public sector workforce would not increase costs for federal agencies, Taylor explained later, because its premiums were based on a separate actuarial assessment.

More at The Mandarin: What’s wrong with Comcare? ACT boycott and Abetz will act