Since the 2006 enactment of the Charter of Human Rights and Responsibilities, it has been necessary for Victorian lawmakers to legislate compatibly with the 20 basic human rights set out in the Charter. One of these rights, particularly relevant to the field of personal injury, is the right to recognition and equality before the law. This right holds that everyone is entitled to equal and effective protection against discrimination, and to enjoy their human rights without discrimination.
Under the Charter, human rights may be limited by Parliament. However, such limitations must be necessary and reasonable and there must be clear reasons for the decision.
When a member of parliament introduces a bill, they must provide a ‘statement of compatibility’ to the effect that they believe the bill to be compatible with the Charter. If the bill contains any provisions which limit human rights under the Charter, the member should set out the nature and extent of the incompatibility and explain why the incompatibility is reasonable and necessary.
In the area of Workers Compensation, two areas where discrimination is apparent are in the treatment of psychiatric injuries and the entitlements of older workers.
In order to obtain an Impairment Benefit for pain and suffering, a worker with a musculoskeletal injury must be assessed as having at least a 5% Whole Person Impairment. By contrast, a worker with a psychiatric injury must be assessed as having at least a 30% Whole Person Impairment to obtain compensation.
In justifying this discriminatory provision to Parliament, the responsible minister referred to the need to maintain the scheme’s integrity and economic viability. By ‘integrity’, the minister was presumably referring to the notion that a psychiatric injury is less capable of being objectively verified than a physical injury (i.e. it is easier for a worker to ‘put on’ a psychiatric injury than a physical one).
The reference here to ‘economic viability’ holds that, due to the prevalence of psychiatric injury in the modern workplace, if every worker who sustained a psychiatric injury could obtain an Impairment Benefit, the scheme’s costs would blow out unsustainably.
‘Economic viability’ is also a justification in limiting weekly payments for older workers. As the law stands, a worker aged 63½ or older when they sustain injury is limited to 130 weeks of payment. This applies even if the older worker would otherwise be entitled to weekly payments beyond 130 weeks, and even when (as is increasingly common) the worker had intended to work well beyond the ‘retirement age’ of 65.
In justification of this provision, it has been argued in parliament that beyond the age of 65, a worker would ordinarily be able to obtain an aged pension instead of weekly payments.
While the above justifications of discriminatory provisions are contestable on multiple fronts, at least justifications were given.
By contrast, no justification appears to have been provided with respect to the discriminatory provision which hold that workers over the age of 65 cannot receive a 9% superannuation payment on their weekly payments. As this superannuation payment is but a fraction of the weekly payment, and would only be payable to an older worker for a maximum of 18 months (workers are not eligible for superannuation on their weekly payments for the first 12 months), it’s difficult to see how the ‘economic viability’ of scheme would be compromised by extending the superannuation payment to older workers. Arguably, this infringement of the human rights of older workers is not reasonable and necessary.
In the right case, the refusal of a WorkCover insurer to pay superannuation to an older worker on the basis of this discriminatory provision could be subject of review by the Supreme Court.
Watch this space.