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Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014

Portfolio: Employment
Introduced: House of Representatives, 19 March 2014

Summary of committee concerns

1.1        The committee seeks further information on the compatibility of the changes to the Comcare licensing scheme with the right to social security and the right to enjoy just and favourable conditions of work.

Overview

1.2        The Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 seeks to make a number of amendments to the Safety, Rehabilitation and Compensation Act 1988 (the Act). The explanatory memorandum for the bill states that the amendments are intended to reduce the cost of the regulatory burden on the economy by implementing recommendations of the 2012 Review of the Safety, Rehabilitation and Compensation Act 1988 (the Review).[1] The bill will amend the Act to:

• remove the requirement for the Minister to declare a corporation to be eligible to be granted a licence for self-insurance, while retaining the ability for the Minister to give directions to the Safety, Rehabilitation and Compensation Commission (the Commission);
• enable corporations currently required to meet workers’ compensation obligations under two or more workers’ compensation laws of a State or Territory to apply to the Commission to join the Comcare scheme (the ‘national employer’ test);
• allow a Commonwealth authority that ceases to be a Commonwealth authority to apply directly to the Commission for approval to be a self-insurer in the Comcare scheme and be granted a group licence if the former Commonwealth authority meets the national employer test;
• enable the Commission to grant group licences to related corporations;
• make consequential changes to extend the coverage provisions of the Work Health and Safety Act 2011 to those corporations that obtain a licence to self-insure under the Act; and
• exclude access to workers’ compensation where:
  • injuries occur during recess breaks away from an employer’s premises; or
  • a person engages in serious and wilful misconduct, even if the injury results in death or serious and permanent impairment.

Compatibility with human rights

Statement of compatibility

1.3        The statement of compatibility for the bill states that it engages the following rights: the right to social security, including social insurance;[2] the right to work, in particular the rights of persons with disabilities to habilitation and rehabilitation and to work and employment;[3] the right to safe and healthy working conditions;[4] and the right to privacy.[5]

Committee view on compatibility

Right to social security

1.4        Article 9 of ICESCR states that:

 ‘States Parties to the present Covenant recognize the right of everyone to social security, including social insurance’.

1.5        The statement of compatibility notes that General Comment 19 by the UN Committee on Economic, Social and Cultural Rights elaborates on article 9, stating that the ‘States parties should ... ensure the protection of workers who are injured in the course of employment or other productive work’.[6]

Changes to the licensing system

1.6        The committee notes that the right to social security may be subject to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'.[7] Where a measure may limit a right, the committee's assessment of the measure's compatibility with human rights is based on three key questions: whether the limitation is aimed at achieving a legitimate objective, whether there is a rational connection between the limitation and that objective and whether the limitation is proportionate to that objective.^[8]

1.7        The statement of compatibility notes that, if passed, the bill will have the effect of expanding and changing the eligibility criteria for licensing under the Act, which will bring more employers, and therefore employees, under the (Commonwealth) Comcare scheme. Any such employees will therefore be moving from the relevant State or Territory workers' compensation legislation to the coverage of the Commonwealth legislation. The statement of compatibility notes that, due to 'small variations' between the State or Territory schemes and the Commonwealth scheme, including in the quantum of payments, eligibility criteria and claims processes, employees moving to the Commonwealth scheme may receive a 'different amount of compensation' than they would have under their previous State or Territory scheme.[9]

1.8        On the basis that the schemes in all jurisdictions are 'designed to provide injured workers with fair, timely and appropriate compensation and rehabilitation', the statement of compatibility concludes that that any 'minor variations' in compensation amounts 'are not considered to impact on the human right to social security'.[10]

1.9        However, the committee notes that, to the extent that 'minor variations' in compensation amounts might reduce the amount of compensation being received by an injured worker, such variations may represent a limitation on the right to social security and the right to enjoy just and favourable conditions of work.

1.10      The committee further notes that the proposed changes to licensing measures include a proposal to allow multi-state employers to access a single jurisdiction worker's compensation scheme. To the extent that this proposal would allow a multi-state employer to move from a State or Territory scheme to the Commonwealth scheme, the committee notes that 'minor variations' to compensation amounts could also arise (and hence represent a limitation on the right to social security as set out above).

1.11             The committee therefore intends to write to the Minister for Employment to seek clarification as to whether the proposed changes to the licensing system may limit the right to social security and the right to enjoy just and favourable conditions of work and, if so:

• whether the limitation is aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is proportionate to that objective.

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