Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Hansard source

I rise to speak on the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2011 before the House this morning. The bill reflects some of the recommendations contained in the Department of Education, Employment and Workplace Relations' 2008 report, Review of self-insurance arrangements under the Comcare scheme. Although not explicitly stated, the review was part of a broad program by Labor to eventually shift all existing Comcare self-insurers back to the relevant state based workers compensation systems.

In 2008 the government implemented a moratorium on non-government employers seeking access to the scheme. This was subsequently enshrined in legislation in 2009 and the coalition did not oppose the bill. While the coalition will not oppose this legislation, we note our very real concern about this bill which is simply that it is an element of Labor's program of changes to water down the Commonwealth government workers compensation scheme, Comcare. Provisions in this bill will bring the Commonwealth laws in line with existing state workers compensation laws thereby reducing the attraction for non-government Comcare participants. This review was part of Labor's plan to shift all existing self-insurers back to the relevant state based workers compensation systems. The 25 or so non-government self-insurers will be forced to return to state systems, sending us back to the dark ages.

Currently an employee who is injured during a break from work, for example leaving a worksite during a lunchbreak to purchase a meal at a nearby shop, would not be eligible to claim for such an injury. This would be reversed under the changes proposed in the bill thereby allowing a worker to claim an injury suffered when temporarily absent from their normal workplace during such a recess. Obviously this expands the extent to which an employer has liability. It also removes the ability of an employer to control the degree of safety compliance of a worker. For example, the worker might choose to cross a busy road rather than use a pedestrian crossing or may sprain their ankle whilst running during their lunchbreak. Anecdotal evidence suggests that many contested injuries occur in either recess or journey circumstances and an unscrupulous employee may exploit the lack of dedicated workplace supervision to sustain an injury for which compensation is sought. The Productivity Commission found that the employer's ability to exert control over workplace recess breaks and social activities is a relevant consideration. It recommended that coverage for recess breaks and work-related events be restricted on the basis of employer control to those undertaken at workplaces and at employer sanctioned events. In line with recommendation 13 of the department's review and the Productivity Commission's 2004 recommendation that claims arising from injuries sustained during off-site recess breaks should be excluded, the coalition will seek to amend the bill proposed by the government to remove the changes to recess claims.

We know from the Senate committee that if an employee goes scuba diving in their lunch break the employer is liable for anything that happens. We believe that people should take individual responsibility and that the liability to an employee should continue to be limited to circumstances where the employer has an element of control. It would be unreasonable to make employers liable for all types of injuries sustained by their employees independent of the employment relationship.

If this bill were to succeed, an employee working on a building site in Manly who goes scuba diving in the lunch break and injures themselves will be pleased to know that, despite being on their lunch break, the Commonwealth would be liable for them. It is unreasonable to make employers liable for all types of injury sustained by their employees independent of the employment relationship. This justifies the common-sense test, and the coalition will put forward a sensible amendment to insert some common sense in this bill.

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