Legal Workers' Compensation

Following on from the proposed changes to New South Wales workers' compensation; Fair Work Australia has recently rejected group arguments that workers' compensation absences should not count towards the minimum qualifying period.

The minimum qualifying period, whether six months or twelve months (depending on the size of the employer) is the time period during which employers are protected from unfair dismissal claims from employees. Once past this qualifying period, an employee is able to lodge a claim of unfair dismissal against an employer.

The recent case of WorkPac Pty Ltd v Bambach- [2012] FWAFB 3206 - 31 May 2012 found that the employee, Michael Bambach was eligible for an unfair dismissal claim after spending over 14 months absent from work due to an injury. Bambach began his employment in March 2010, then was subsequently injured and deemed unable to perform work duties from early June of the same year until September of 2011. After being deemed fit to return to work, Bambach was given notice of the cessation of his employment, effective from the day following his proposed date to return to work..

The Australian Industry Group stated that unpaid authorised absences (including workers' compensation) are not normally considered part of continuous service. However the Bench ruled that as compensation payments were made "pursuant to a legal obligation upon the employer" the absence is not technically an unpaid one, and therefore counts towards continuous service.

The AIG also argued that this result could give employers "a significant disincentive to continue to employ workers who are absent from work for extended periods as a result of workplace injuries". The Bench rejected this, as well as the argument that there would be an inability to assess the capabilities and conduct of a new employee if they are absent. The response from FWA stated that other absences such as jury duty and community service also count towards continuous service yet also serve to the same effect on assessments as workers' compensation absences.

What the ruling does do is provide essential clarity on the meaning of continuous service for employers and employees alike. If you require further information regarding workers' compensation and the legislation surrounding it, it is recommended to consult with a workplace law specialist for accurate, expert advice.

Do you have a culture of safety at your company? This means more than just having a safety system in place. It means that from the top down there is a genuine desire to maintain a safe work environment, and is built with the buy-in of all employees.

The following points are important to remember to promote a safe working environment:

Workplace Safety is more than a policy and sign-off sheets, it needs to be imbedded in the culture and driven from senior management.

Existing Workplace Safety systems need to be reviewed on an ongoing basis, and are not static. Ensure that employees are consulted as part of the process.

Workers' Compensation claims need to be managed by a representative of the company to insure minimum impact on the business and effective return to work of the injured employee. It is not enough to rely upon the insurer and doctors.