ComCare changes concerns
July 7, 2015
Concerns are still being expressed about this bill. The most recent from the Law Council of Australia in May 2015. The Council had a number of specific concerns to do with various matters. The matters most relevant to us are:
- “The Bill expands the notion of “reasonable administrative action” to virtually any management action by an Whilst it may be accepted that an expansion of the exclusion to the definition of injury is a matter for Parliament, the absence of a limitation or qualification of what is meant by the phrase “management action” is likely to lead to uncertainty and complex litigation, such as in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, in order to determine the distinction between an employee’s usual duties and “management action”.
and
- The explanatory memorandum states that the Bill aims to “distinguish more clearly between work and non-work related injuries by requiring certain matters be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee‘s employment” (page ii).
- Some of the amendments appear to require a decision-maker to apply value judgments at a level of abstraction that is not necessarily attainable without the assistance of expert evidence. For example, requiring a decision-maker to consider the probability that an employee would have been more or less likely to sustain a similar injury at a certain stage in their life is a matter that ought not to be left to the lay opinion of a decision-maker.
- Further, it is noted that this approach appears to involve a departure from the “eggshell-skull” principle – that the employer must take an employee as they find them, with or without existing ailments or propensity toward particular types of injury.
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