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Semmler, Peter --- "Editorial: a perennial challenge" [2015] PrecedentAULA 68; (2015) 131 Precedent 2


PROTECTING WORKERS’ RIGHTS

A PERENNIAL CHALLENGE

By Peter Semmler QC

From its inception over 20 years ago, as the Australian Plaintiff Lawyers Association (APLA), the ALA has sought to protect the rights of employees to be properly compensated for workplace injuries.

For example, back in April 1994, when APLA barely had 100 members, Nick Xenophon, the Association’s first SA Branch President, described the abolition in South Australia of the right to sue at common law as having ‘diminished the individual responsibility of employers to provide a safe system of work’. He led a vigorous campaign against a massive overhaul of that state’s WorkCover scheme.

Since then, in addition to participating in similar campaigns all over the country, individual ALA members have brought claims for employees at the cutting edge of developments in this area of the law. Some of these members contribute to this edition of Precedent.

Larry King SC provides valuable guidance to NSW practitioners on the meaning and effect of s151Z of the Workers Compensation Act 1987 (NSW). In her illuminating analysis of the recent Court of Appeal decision in the Cram Fluid case, Roshana May explains the meaning of ‘one claim’ for the purposes of s66(1A) of the same legislation. Lucinda Holt’s overview of recent changes to the Workers Compensation Act including the State Insurance and Care Governance Act 2015 is also essential reading for practitioners in NSW, as is Phillipa Alexander’s article on the problems faced, even by successful plaintiffs, in recovering costs.

Tanya Segelov, one of the most experienced dust diseases practitioners in this country, examines common law claims by the ‘third wave’ of asbestos victims; those exposed to the lethal fibres in a domestic context. She also sheds light on the ambit of s15B of the Civil Liability Act 2002 (NSW).

For Victorian practitioners, Naomi Riggs and Genna Angelowitsch explain how the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) provides a more logical structure than its predecessor, the Accident Compensation Act 1985 (Vic), without substantially altering employees’ benefits.

Adam Tayler describes how the Workers Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Qld) has restored many workers’ rights removed by the Newman government. The ALA’s Queensland branch is to be congratulated for its contribution to this remedial legislation.

Patrick Boylen reviews the major changes to the SA workers’ compensation scheme effected by the Return to Work Act 2014 (SA), the first legislation of its kind in Australia. Part of a national trend, the clear losers are the workers whose WPI is less than 30 per cent. Tony Kerin explains the important provisions of accompanying legislation, the South Australian Employment Tribunal Act 2014, which deals with the procedures for resolving disputes in SA.

Geoff Wilson describes the unfairness to workers of the radical amendments to the Comcare scheme embodied in three recent Bills introduced by the federal government. These Bills have stalled in the Senate, thanks to a successful lobbying campaign by various organisations, including the ALA. One well-publicised High Court decision under the current legislation, Comcare v PVYW, is the subject of Leo Grey’s article. It makes interesting reading, especially because of the somewhat unusual facts of the case.

Another tireless campaigner for the rights of victims of workplace injuries, Angela Sdrinis, wrote a compelling account in the October 1997 edition of Plaintiff about APLA Victoria’s campaign against the proposed abolition of common law rights for Victorian workers. Here she writes about recovering compensation for psychological injuries under the ever-expanding Comcare scheme.

Considering the future legal landscape, Rod Hodgson and Jane Campbell discuss the implications for injured workers of the National Injury Insurance Scheme. Importantly, they stress the ongoing need for ALA members to fight to preserve the existing rights of victims of catastrophic workplace injuries to sue at common law alongside the proposed no-fault scheme.

Keeping abreast of legislative developments and case law affecting compensation for workplace injuries is essential for practitioners in this area. However, campaigning against the further erosion of workers’ rights – as Nick Xenophon did 20 years ago – is just as important. There is no point in becoming experts in workers’ compensation or in in honing skills to win damages claims for individual employees, if the precious rights to bring such cases and recover such compensation are legislatively eliminated.

Peter Semmler QC was the first National President of the APLA, from 1994 to 1998.


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