Amendments to the workers’ compensation legislation over the decades

*The contents in this blog relates to legislation in Queensland.

Compensation for injured workers has been accessible to some degree in Queensland since 1916, following the introduction of the initial workers’ compensation legislation.

Since its introduction we have seen multiple legislative changes and amendments made over time. These changes have altered the way workers compensation claims are commenced, and the way in which they proceed. The initial legislation and claim processes applicable in the centuries following 1916 were vastly different to what we see today as a result of the changes made over time.

The majority of the significant changes made to the initial workers’ compensation legislation occurred in the 1990’s and 2000’s. Modifications and legislative reviews were infrequent prior to this time and such changes made were not substantive. The major rewrites of the legislation can be seen occurring in 1996 and 2003. The key change of significance saw the introduction of WorkCover Queensland, and a more structured pre-court process to follow.

The legislation applicable in Queensland in 1916 for an injured worker saw no pre-court process available. This meant that the injured worker had to proceed straight to lodging court proceedings in the form of filing a writ of summons, summons, notice, order and counter-claim (in 1974 later amended to a writ of summons, summons and statement of claim). This direct to court process saw unfair and varying decisions awarded to workers. This practice also saw lengthy delays in the processing of these claims, and the burden on the court system was overwhelming. The added confusion surrounding how these claims were meant to proceed led to the need for greater structure to be introduced.

WorkCover was seen announced as the provider of accident insurance to Queensland employers (other than self-insurers) to bring about that structure.

A WorkCover insurance policy covers an employer for all compensation, medical expenses and damages claimed by injured workers for injuries that arise out of or in the course of employment, where employment is a contributing factor to the injury.

With concerns surrounding initial legislative procedures increasing over time, together with other factors raised the establishment of a Commission of Inquiry surrounding workers compensation was constructed. As a result a subsequent report was compiled which referred to $320 million in unfunded liabilities. This report made a significant 79 recommendations in relation to the provision of workers’ compensation in Queensland. These recommendations led to the system introduced that we see today. Further recommendations that were introduced included changes to the definition of ‘injury’ and ‘worker’ in the legislation which were initially incorporated in the WorkCover Act 1996 (‘the Act’).

Under the Act pre-court procedures were also introduced to attempt resolution of injured workers damages claims without the need to resort directly to the court system. These pre-court procedures are what must be observed today. The commencing procedure allows for the injured worker to submit a Notice of Claim for Damages form upon the employer and WorkCover when commencing a damages claim.

The current workers’ compensation scheme also introduced advantages for the injured worker such as statutory benefits that enable workers to receive medical treatment, weekly benefits for lost wages and rehabilitation provided during their recovery period. As well as statutory benefits injured workers also have entitlements to proceed to a common law damages claim when it can be established that the injury was caused as a result of the employers’ negligence.

Overall the introduction of WorkCover saw a certainty provided and a level process for injured workers.

Under the current legislation all Queensland employers who engage workers must hold a workers’ compensation insurance policy with WorkCover, unless they are covered by a licensed self-insurer.

The introduction of the amended workers’ compensation legislation also saw other advantages added for the injured worker. Such as the commencement of workers participating in rehabilitation and return to work programs. The introduction of these programs saw a rise in injured workers getting back to the workforce after sustaining injury. Many advantages such as the introduction of rehabilitation programs can be seen following the establishment of the structured WorkCover process. These processes allow a just and fair accessible system to workers should an injury be sustained during the course of their employment. The Act showed an introduction of a stable framework and effective management of workers compensation benefits for the injured worker.

The advantages of these legislative changes also bought about some difficulties seen surrounding the determination as to which legislation may be applicable to an injured workers claim. This is particularly the case where there is an injury that has been sustained over a period of time. WorkCover however introduced a policy document to clarify this issue. The policy confirms that where a worker brings a claim for an over period of time injury, the parties involved need to only comply with the procedural steps applicable under the relevant legislation that was in effect at the time of the commencement of the injury date. This policy clarified many answers to questions that were raised surrounding what happens when an injury spans over the length of differing legislations. Clarification as provided in this policy gave legal providers the answers they required when trying to navigate the introduction of the new legislation.

It is notable to see that the amendments made to workers’ compensation legislation over the years has added strength to the position of those that are injured at work.

The amendments made have streamlined the processes available to workers and provided additional rights, primarily in relation to the pre-court procedures available for common law claims. A thorough system was also introduced at the statutory level which gave workers greater rights allowing access to rehabilitation and retraining, and the security of their pre-injury employment position being held. The workers’ compensation legislation is consistently updating which allows for the introduction of necessary changes made on an as needs basis. When any changes are made it is helpful to see that organisations are also providing policies which help to clarify these changes and what they may mean for the injured work, and those parties that assist the injured workers to bring about these claims.