Page 3438 - Week 12 - Tuesday, 11 October 1994
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I present the explanatory memorandum marked "Supplementary A". These changes insert a definition of "protocol" in proposed section 15A and provide that, where an employer provides occupational rehabilitation services in accordance with the protocol, then those services are taken to be appropriate, adequate and timely, within the meaning of "occupational rehabilitation" in new section 15A. In effect, employers may discharge their obligation to provide occupational rehabilitation by showing that they have met the requirements of the protocol. Employers can choose not to follow the protocol, in which case they must discharge their obligation to provide occupational rehabilitation. That, quite frankly, is supported by all members of the Assembly - the Opposition, Ms Szuty and the Independent, Mr Moore.
Amendments agreed to.
MR DE DOMENICO (8.52): Madam Speaker, I move:
Page 2, line 28, proposed subsection 15B(1), omit "employer", substitute "employer's insurer or, in the case of an exempt employer, the employer".
Under this amendment, insurers are likely to have, on a day-to-day basis, more involvement with rehabilitation than employers per se. Consequently, the employer may not have the necessary basis upon which to form the required opinion. The section also lacks any input in terms of the employer's insurers. My amendment simply states that the employer's insurers should have more input than this Bill allows them to have. I am pleased to move that amendment, Madam Speaker.
MR LAMONT (Minister for Urban Services, Minister for Housing and Community Services, Minister for Industrial Relations and Minister for Sport) (8.52): The Government opposes Mr De Domenico's amendment. Principally, the general thrust of the amendments as set out in the Bill is to place all obligations on the employer. The insurer then uses their right to step into the employer's shoes - and that is called subrogation - to take over the actual management of the claim. From our perspective, this is a neat and tidy process which avoids prosecution difficulties when providing evidence of the insurer's opinion when prosecuting an employer. The amendment would make the provision very difficult to enforce, as we will not know what the opinion of the employer's insurer is. The present wording does not present such a difficulty because it is technically the opinion of the employer that matters, and that opinion is required to be reasonably held. Of course, employers would need to consult insurers to determine whether they are liable, but that is not a difficulty facing the prosecution per se. From the insurer's perspective, I would have thought that this change was desirable. It avoids their difficulty of making sure that employers do not make payments without their agreement. However, such an inclusion would mean that the Bill was tending to regulate the arrangements between the employer and the insurer rather than between the employer and the employee, as intended.
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