The Offer that MUST be Refused
August 10, 1999
The following is a detailed analysis of the inequities in the Government offer that was tendered as evidence in proceedings before the full bench of Industrial Relations Commission on Friday last:
NSW Fire Brigade Employees’ Union Concerns
This document sets out the Union’s preliminary concerns in respect to the issue of ‘coverage’ in relation to the Government’s offer of 31 July, 1999.
The document addresses the qualification the Government’s offer places on the payment of a benefit commencing with the broad and moving to the specific.
Qualification 1: “Injured” in relation to a firefighter, means injured in such circumstances as would entitle the permanent firefighter to compensation under the Workers Compensation Act 1987.
For firefighters employed pre-1985 injury is not qualified by reference to the Workers Compensation Act 1987.
Practical difficulties arise because for this qualification to be demonstrated it is subject to a determination by the NSW Compensation Court. The medical retirement of the firefighter may occur before a determination in relation to workers compensation. This situation would not arise in respect of firefighters employed pre-1985 because the benefit is contingent on an injury resulting in medical retirement.
The connection with the Workers Compensation Act 1987 may prejudice the choice available to firefighters in settling their workers compensation matters out of court through redemption and commutation.
Changes to the Workers Compensation Act 1987 may impact on firefighters access to benefits as a result of changes to the scope of injuries contemplated in the Workers Compensation Act 1987.For example recent changes in respect of psychological injuries such as post traumatic stress disorder. A further recent change to the Workers Compensation Act 1987 at section 9A has required work to be a substantial contributing factor before the injury is regarded as compensable.
Qualification 2: “arising in the course of employment”: injury during work hours: is a definition based on the Workers Compensation Act 1987. “Arising in the course of employment is defined at section 4.6 of the Workers Compensation Act 1987 .
For firefighters employed pre-1985 injury is not qualified by reference to “arising in the course of employment” and therefore the Workers Compensation Act 1987 test does not apply.
In respect of the term generally, all injuries arising when a worker is carrying out specified work duties in work hours arise in the course of employment. However, some injuries arising during work hours may be excluded and some injuries arising outside working hours but in connection with employment may be included.
When the qualification “arising in the course of employment” is read in conjunction with the qualification in respect of injury it is apparent that the circumstances contemplated are identical to those covered in the Workers Compensation Act 1987.
The Governments offer therefore represents a top-up to workers compensation provisions.
Qualification 3: “Special Risk”: arising where the firefighter was exposed to risks to which members of the general workforce would not normally be exposed to in the course of their employment.
For firefighters employed pre-1985 the circumstances of the injury is not qualified by reference to “special risk”.
The definition is litigious and fraught with problems in respect of definitional utility. There are practical problems in respect of the Commissioner of the NSW Fire Brigade exercising discretion in respect of determining if a “special risk” existed. For the Commissioner to decide that an injury was “special risk” it follows that this decision prejudices the employer’s position in respect workers compensation and common law actions that may arise. The employer, in respect of contractual obligations to their workers compensation insurer and the Crown, are required to mitigate such liability.
Determination of the “special risk” qualification is appealable in the NSW Compensation Court. This may be problematic given that courts function in determining the foregoing qualification in respect of workers compensation.
Qualification 4: Total and Permanent Incapacity and Partial and Permanent Incapacity.
It is apparent from the context and mechanisms discussed in the Government’s offer that the definition of Total and Permanent Incapacity and Partial and Permanent Incapacity is derived from the Workers Compensation Act 1987.
For firefighters employed pre-1985 a benefit is not qualified by reference to a distinction based on Total and Partial incapacity.
For practical purposes the definition of these terms in the Workers Compensation Act 1987 are at variance with the identical terms that arise in the State Authorities Superannuation Act 1987 and the First State Superannuation Act 1992 .
The qualification further limits access to benefits that members of these schemes would currently be able to access in materially identical circumstances.