Page 533 - Week 02 - Thursday, 9 March 2006
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Bill, as amended, agreed to.
Workers Compensation Amendment Bill 2006
Debate resumed from 16 February 2006, on motion by Ms Gallagher:
That this bill be agreed to in principle.
MR MULCAHY (Molonglo) (11.50): The opposition will support this bill, but I take the opportunity to make some comments about the increasing cost burden of workers compensation insurance in the ACT. The purpose of this bill, as was outlined by the minister, is to clarify the effect and overcome some flaws in the current act. I thank the minister and her office for their continuing practice of giving us advance notice and providing us with a briefing on legislative measures that relate to my shadow ministerial responsibilities, which enables us to clarify issues. That occurred on this occasion when there were some matters that we identified that needed examining.
The purpose of the bill, as I indicated, will ensure that all family day care and in-home carers have the same entitlements to workers compensation; it allows access to workers compensation for women up to the age of 65 years; it corrects an anomaly relating to the value of weekly earnings prior to a person becoming incapacitated; and it ensures that rehabilitation treatment is part of the compensation covered by insurance. There are a few other amendments, but they are consequential amendments and certainly are not controversial.
At present most carers are employed under the Family Day Care (ACT) Award (1999) and, as employees, are covered by the Workers Compensation Act. However, carers who work on contract with Communities@Work, an incorporated organisation, are not employed under the award and are not covered by workers compensation insurance. The legal advice is: first, those carers work strictly according to the manual of procedures under the close direction of Communities@Work, including specific details of receipts and payments as required for commonwealth government funding; second, they do not plan and direct their own work; and, third, there is no scope for negotiating any independent contractual arrangements different from those applying to employees. I understand that, as a result of that advice, those carers come within the definition of “worker” for the purposes of workers compensation.
This is a complex area of law. It has been debated extensively for the last 46 years, as far as I know, in High Court cases, on the matter of what is deemed—it sounds archaic—the master-servant relationship, which is a tax definition to basically try to determine whether you are an employee or a contractor. Obviously there are many legal issues intersecting between Australian taxation law and industrial law and workers compensation provisions. But on the tests that seem to be applied to this particular class of individuals, the government are correct to deem them workers. That is the legal advice they have. Those carers will now come within the definition of “worker” for the purpose of workers compensation.
The rationale of the legal advice, I understand, is that carers in these circumstances do not have any freedom to determine terms and conditions of doing the job; so, in effect,
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