CONCILIATION OF DISPUTED WORKERS COMPENSATION CLAIMS
The Hon. Dr MEREDITH BURGMANN: Will the Attorney General, and Minister for Industrial Relations inform the House about the implementation of the Street report into the conciliation of disputed workers compensation claims?
The Hon. J. W. SHAW: There has been a significant development in the processing of workers compensation claims in New South Wales. In December 1995 I asked Sir Laurence Street to examine the dispute resolution mechanisms in the workers compensation system and to develop a constructive and effective model of conciliation for the New South Wales WorkCover scheme. The need for such a model had arisen in debate about the WorkCover scheme, which had been for some years under significant cost pressures because of the inaction of the previous Government. As I discussed with various stakeholders the areas in which the
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scheme could be improved, a constant complaint that emerged was that a large number of cases were being settled on the steps of the Compensation Court.
It appeared that litigation had become the first resort to resolving any conflict, with hearings set and court time allocated before the parties actually met to negotiate a mutually acceptable outcome. That culture was not only placing a burden on the judicial system and costing WorkCover unnecessary legal fees, but, more importantly, it was dragging out the claims of genuinely injured workers, causing delays in accessing their benefits and getting about the business of seeking rehabilitation and returning to meaningful employment. In response to those concerns I referred that vexed issue to Sir Laurence, a former Chief Justice of New South Wales with a great understanding of not only the judicial process but also alternative methods of dispute resolution.
Some wanted the removal of lawyers from the system altogether, but Sir Laurence chose a more balanced model that retains a worker’s right to legal representation while facilitating the settlement of disputes before litigation is commenced. That model has now been brought to life, and I was pleased to officially open the Department of Industrial Relations premises earlier this month. The service is primarily designed to be a fast, economic and user-friendly forum for dealing with disputes before court action is initiated. It will be compulsory for disputes arising from new claims to be referred by the applicant to the new service prior to filing in the Compensation Court. Claims will then be screened by conciliators to determine whether it is appropriate for the dispute to be returned to the insurer for review, referred for conciliation, or for the applicant to be allowed to proceed to filing at the court without further delay. That will enable parties to have their claims dealt with in the most appropriate manner at the earliest possible time.
When it is determined there is a reasonable prospect that a dispute can be settled, it will be referred to a conference-based conciliation. Importantly, parties will have as a right an entitlement to representation by a legal practitioner or other agent, such as a representative of their union, at this conference. To ensure that disputes are dealt with quickly and cheaply the new service will operate within stringent time constraints. For example, in the case of claims for weekly benefits the service has only 21 days to resolve the matter before the applicant is able to file at the court. Whilst that places some pressure on the conciliation process, it also ensures that the worker is not subject to undue delays in having his or her matter dealt with at conciliation.
I emphasise Sir Laurence’s comments that changes in culture were a necessary requirement of successful conciliation. Sir Laurence said that such a cultural change would include "a combination of goodwill, encouragement, incentive, promotion, education and, in the last resort, sanction". I respectfully endorse those sentiments. From the limited number of cases processed by the conciliation service to date I am able to say that the parties appear to be embracing the new system constructively and in good faith. The Government is confident that the model of conciliation being piloted will deliver fair outcomes for all participants, whilst achieving significant savings in both time and resources.