Page 213 - Week 01 - Thursday, 16 February 2006
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work realities. Those assumptions are that when a work injury occurs, the employer, however defined, is responsible for the injury; and that employees have diminished capacity to control their work environment and, when an injury occurs, are assumed to be blameless.
I spent part of my career dealing with a manufacturing industry. Some years ago I was consulting to a manufacturer and I saw firsthand, a situation where an employee came racing into the manager’s office minus a finger. He had decided to remove a safety guard that the company had installed on equipment because he found it irritating and, as a consequence, suffered an horrific injury in the workplace. You could argue about that case all you like but it is one I happened to see first-hand. I felt very sorry for this person and their injury, and we got them to rapid treatment. But certainly I gained a lasting impression that these things are never quite straightforward.
Thus, the employer, however defined, is presumed to be at fault, regardless of the actual causes of any particular injury. This distorts the effective functioning of workers compensation arrangements as insurance schemes and OH&S laws as injury prevention mechanisms. This is the starting point from which the policy and operational distortions that occur in workers compensation and OH&S laws can most readily be understood.
Work safety laws take it as a given that the employer controls the work situation and is therefore responsible and liable under both workers compensation insurance and OH&S. But the reality of work situations is that many different individuals have combined control over work, and the one I cited is an example. The truth is that there are normally multiple “hands” on the steering wheel of the work “vehicle”. Work safety laws, however, are biased towards the assumption that one “hand”, the employer’s, controls work. This is a false assumption based on the presence of a legal contractual relationship called “employment”. The truth is that employers do have significant control, but so too do employees and many others, including unions, suppliers and government authorities. The outcome of this false assumption about employer control is that individuals who did not have practical, effective or total “control” are held to be totally liable, both from an insurance perspective and a prosecution perspective, and that other individuals who did have control or shared control in any situation are not held liable in any respect.
Twisting the truth about “work control” in such a contorted way diminishes community trust in the fairness and justice of work safety laws, causes people to spend time and energy trying to avoid the injustices of the laws and, I suggest, reduces the effectiveness of public policy targeting safe work practices. The essence of the problem is that the person paying the premiums—that is, the employer, however defined—does not receive the benefit of any claim but suffers the loss resulting from a claim made by someone else.
Under normal insurance the person paying the premium is the person covered and is the appropriate person to receive the benefit in the event of a claim. It is on this basis that actuarial risk is assessed. However, workers compensation design distorts normal actuarial risk assessment. Because the system works on the assumption that the employer is to blame for injury, it is wide open to claims of abuse. I know that Mr Gentleman frequently stands up in this place and talks about the terrible things that happen to members of the TWU at the airport. I would never say there are not rogue employers. I do not know about those particular cases—I have heard contrary views—but certainly
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