When Workers Compensation collides with Work Health and Safety.
The Injured Workers Support Network Helpline is not just there for your members but for you as well. If you have a question about workers compensation you are more than welcome to contact our helpline or send us an email with any of your questions.
One of the issues we face though is that industrial law and work health and safety laws can be caught up with the Workers Compensation system.
This education note is to inform you of one such area of conflict between the three systems.
Returning to Work.
The workers compensation system is geared (for good or ill) in getting an injured worker back to their employment with full duties.
This can be complicated though by the Work Health and Safety Act in the following way:
Member A has recovered from their injury to the extent that they can return to their work duties. The member’s doctor and/or their insurer corroborate this and the member’s workers compensation payments are ended. Except the member’s workplace refuses to have them back.
In this situation the insurer is using both the 1987 and 1998 acts:
1998 section 48 (1) A worker who has current work capacity must, in co-operation with the employer or insurer, make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker’s place of employment or at another place of employment. AND
1987 section 43 Work capacity decisions by insurers.
The Employer though can only prevent the member returning through using the Work Health & Safety Act 2011 section 19 primary duty of care:
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
You will often hear “we need to make sure you are safe at work before we can let you come back” or something like this from the employer.
It sounds and is counter intuitive but it happens too often.
This scenario is not strictly a workers compensation matter. It is an industrial matter and one in which a union can take action to rectify.
So what can you do as a Union Organiser?
Before you do anything you need to ask your member if they are still employed by the employer. If they are still employed then take the following advice:
Find out from the employer why they are not taking the advice of their insurer.
It may be out of ignorance of the role the insure plays in facilitating a return to work.
The proof the employer is after is there in the insurer’s files and advice to the employer. Suggest that the employer obtain the insurers findings and use this rather than obtaining a new medical assessment (it also saves them money).
It may be because the insurer isn’t sending their findings to the employer.
A reminder to the insurer case manager that this lack of information is preventing your member from returning to work, therefore closing their file and that the employer actually owns those files and the insurer has asked for the assessment on behalf of the employer (as an independent entity, the insurer has no power to order a medical assessment – only the employer can so the insurer does these at the behest of the employer).
It may be the employer has back-filled the workers position.
This is against the workers compensation act as the position should be made available to the returning worker as with a position filled while a worker is on maternity leave.
It may be that the employer just doesn’t want your member back.
If it is over six months since the injury the employer may have a position based on the workers compensation legislation.
If it is under six months then the employer don’t have a leg to stand on. Under workers compensation legislation an injured workers position is protected for six months.
In either case it is worthwhile running an unfair dismissal case based on the fact that the member only found out when the member was set to return to work.
Other action you can take.
If the employer is fit for duties but the employer is being unreasonable there may be a case of discrimination. You can launch an action with the Human Rights Commission. Remember it is the perception of disability as well as actual disability which are grounds for disability discrimination.