The benefits achievable for labour hire providers and their host employers
WorkCover Queensland partnered with recruitment firm Programmed, and legal firm Kaden Boriss, to deliver this webinar aimed at helping you understand the benefits of good return to work strategies, and how to implement these in your organisation.
The 45 minute webinar covers:
- Return to work strategies in the labour hire services industry
- The benefits achievable for labour hire providers and their host employers
- A return to work story – Kym Barty and Stephen Harvey Programmed
- Q&A session with WorkCover, Programmed and Belinda Hughes from Kaden Boriss Legal
The first few minutes of this webinar were not recorded due to technical issues, but you can view the majority of presentation below, and download a copy of the presentation slides (PDF, 2.14 MB) to see the first couple of slides not included in the recording.
Download a copy of the presentation slides (PDF, 2.14 MB).
Ben: Host employers are essentially paying this premium indirectly through the fees they're paying to their labour hire providers, and then secondly - and Belinda will touch on this later today, but secondly is when we get to common law and the various case law that's out there and how costs are apportioned in the common law environment, ie. the whole 70/30/80/20 rule and the majority of costs sitting with the host employer versus the labour hire organisation. And then, lastly, it's supporting workers. So, again, we've touched on this, but just a key reminder, WorkCover do have a not at fault scheme. We don't point finger of blame. We look at three key aspects on any claim and that's worker, event and injury, and if we're able to identify those three things then clearly the claim is one for acceptance. So by supporting your workers through the claim you minimise the risk of common law obviously, and you encourage and facilitate a quicker return to work which can reduce your premium. While demonstrating the host employers you focus on viable return to work. So keep open and regular communication with your workers, with their treating doctors, with their allied health professionals and with WorkCover, support them throughout the process. So I'll just quickly touch on this, if you haven't seen it before, but this a fantastic return to work story. We have demonstrated - we have run with this story a little bit, but there are other stories that we've also now recorded and put on our YouTube channel and our website, but Clinton was a fantastic story following quite a serious injury that he sustained in a workplace and returned to work through our Recover at Work program, or the RAW program, and that program not only identified an opportunity with one of our RAW employers, which was Specialised Concrete Pumping. That turned into a permanent opportunity for him which obviously reduced the impacts, long term impacts as a result of that claim. So if you haven't seen that video I really encourage you to jump on our website or our YouTube channel and have a look at Clinton's story because it really shares some significant insights into a good return to work story and what it means for not only employers, but claimants and everyone involved in that scenario. Some of our tools that WorkCover offer, and readily offer, and are happy to provide to assist in these processes, things like our online services, WorkCover Connect. If you don't know what WorkCover Connect is please take the time to get in touch with WorkCover Queensland, either through your relationship manager or through our contact centre if you're not aware of your relationship manager's contact information. We obviously offer regular webinars, we offer fairly regular industry forums and we'll be looking to do more. We do site visits, premium forecasting so we can talk to you about claims impacts and what that means for premium moving forward, individual and industry trend analysis, we offer all of these things. Return to work strategies and suitable duties plans and, of course, all the content we have available from our website. So that's it for me today. I'm going to hand over now to the team from Programmed, Steve and Kym, who are going to take us through some of the challenges that they've faced and some things they've done to overcome the industry, so hand over to you, Steve. Thank you.
Mr Harvey: Thanks, Ben. Good on you. So we've put a bit of a presentation together with Workplace Health and Safety and some of the things that we're doing there. I'm not going to go through all of these points because it would simply take too long. So we just look under the casual employs, the pressure to accept unsafe tasks. Now this is a massive concern for us. We get a lot of people just doing work that they simply can't say no to, they're too scared to say no to. So what we do at Programmed is before anyone is ever placed on site we will go and we'll do a GSA with a client. We will have a look at some of the tasks, some of the controls that are in place when they do these tasks. Also we will continuously follow up, so we're always doing toolbox talks, we're continuously visible and we get an idea of what our people are doing. So it's really important that we know what our staff are getting up to. Fear of reporting injuries, incidents or hazards. Now, just yesterday I had an issue with an electrical socket. It had completely come off the wall. Now, I spoke to some of our staff about it and they were saying, "Oh, no, we don't want to report that because they'll get rid of us," and it's really unbelievable, there's such a potentially catastrophic hazard with that and people are nervous to report it. Now, obviously when I spoke to the client, the client fixed it right away and they couldn't believe that no-one reported it. So it's a real issue so we have to - we keep working with our people and we make sure that we know what's happening, we make sure they know the hazards reporting process, et cetera, et cetera. Under the host employer, outsourcing of higher risk tasks and more labour intensive, I have a story. I don't know how true it was, but I have a story of a company who said, "We don't do manual handling training because that's why we get labour hire people to do it," and we do see this a lot. I can think of a story about Gary was lifting 80 kilograms, believe it or not, and we went to have a look at it and we just couldn't believe it and, yeah, he was and, again, he was too nervous, he didn't want to say no. So, please be mindful if you're engaging labour hire staff about what they're getting up to and what you're going to have them doing. Lack of active participation in facilitation of return to work, this is probably the biggest concern that we have and that's why we're here today. When working with a client, before we place someone on site, we will put a questionnaire to our clients and say, "Do you do meaningful return to work for our people?" Most of the time they will say yes, and that's when we can come back and say, "Hang on a minute, we need you to provide some suitable duties, otherwise we'll bring them internally." Casuals are less likely to be offered suitable duties, alternative duties post-injury. I've seen this before. An example I use often is I went to visit someone at home once and he was watching Dr Fallon, he was looking forward to Ellen coming on afterwards. So I spoke to our people and our doctor and said, "We really need to get this guy doing some suitable duties because it's not good for him being at home," and we've got lots of experience of people being at home and what they go through and so we definitely encourage our doctors to keep our staff in some sort of meaningful work. Just on that other section of regulatory, confusion over shared and legal obligations, unbelievably, we see this quite a lot. We get a lot of clients who say, "Oh, no, that's nothing to do with us. We've brought you in to do this work." We had someone that was replacing the lights at a massive, big convention centre and the organisation said, "Oh, no, no, that's nothing to do with us," and it did take a lot of explaining. So there's a lot of good information on Workplace Health and Safety, Queensland, in regard to your legal obligations, and I'm sure Belinda will touch on that as well later. If anybody's got any questions about some of the other points up there, I'm quite happy to take them at the end. So just some of the challenges that I face doing my job, client transparency when completing investigations. If I'm sitting in front of you and I say to you, "What can we learn from this," it means that you probably haven't given us a lot of information. So we really try and work with our clients and partner with them so that we work together and see what we can learn and make sure these things don't happen again. Quite often, a 1 strike policy, again, if someone makes a mistake they'll be moved on. Another big challenge for us is incidents not being reported to Programmed. We do see this a lot, and Kym will probably touch on this later. We get people who simply do not tell us what's happening. We just don't know what's going on. Client requirements, how often do we hear common sense? We have a lot of people asking, "Send us people with common sense." Getting access to our field staff on site, and I touched on, earlier, how important it is that we know what's happening. We really like to get on site to chat, we love to talk to the clients too, but we really love to know what our field employees are up to and some of the work that they perform, and it also gives us an idea of what we can do to help our clients as well if there are some issues. We occasionally have issues getting access to documentation. Confirmation on job roles and tasks, again, this is where the GSAs came into force. They're constantly live and we constantly review them to make sure we know what our people are up to. Swapping of duties and not notifying us. We had an incident with someone who was supposed to be employed as a cleaner and then fell off a silo and we did not know anything about it. We did not know he was working at heights, so obviously that caused us a bit of concern. So it's really important when you engage labour hire people that you let them know about some of the duties that they're going to be doing and so we know. Some of the initiatives that we've put into place, we've tried to get HSE ownership rights switched to our [ inaudible ] people. Quite a lot of times, historically, we've seen, no, no, no, that's a safety person's job, so we're working really hard to change that. We get our clients partnering with Programmed as well, so we've got a few big clients who are quite happy to take some of our people back. We've got close working relationships with preferred medical providers, and that's state wide. So even if we don't have an injury I will call up doctors and say, "Hello, we've got a big client in your area, we'd love to partner with you. Just keep me in the - would you like to help and we'll go meet with them and we'll tell them what we want," and then what their expectations are. And some of [ inaudible ] Stop and Report Cards. Like I was saying earlier, people are scared to notify us, so we've try to empower them a little bit with the cards and the key rings and we try and keep them as visible as possible. We've got posters in place, some really nice posters that they can put around sites so it keeps it front of mind. In terms of before placement, we've got SMART Moves and Flex Screen, so this is where we make sure that people are not going to be injured, so it's not so much a medical, but it's like a pre-employment screening. And some of the other things, some of the questions for you guys to have a think about that I've left in there so that you can print them out and have a look and really see what you're doing, but I've also made some notes here. Are casual employees engaged in a consultative process? I would really recommend that clients - now when someone has finished their assignment, grab a hold of them and ask them about some of the hazards and what they've seen, what they've seen previously. I'm astounded at what some of our field employees can tell us about different sites they've worked on and it could really, really help you improve, and ultimately that's what we want. So I'll pass you on to Kym. If anybody's got any questions, I'm more than happy to answer later on.
Ms Barty: Thanks, Steve. Yeah, I do the injury management and return to work for the Programmed group. I work very closely with the health and safety team because they're the people on the ground who help us and by both of us working closely together, we get good results for injury management and return to work. I must say my most valuable asset in injury management and return to work is the phone. I have my mobile phone and my desk phone and I'm always in continual contact with candidates, providers, clients, everything I can, and it's a relatively cheap asset that saves thousands and thousands of dollars on claims and premiums. When the candidate is injured, the first thing I do is call the candidate who is injured as soon as possible and then keep in touch with them all the time, and with their family, if necessary. Once I've got them to one of our preferred medical providers, I tell them that I'll take them to the preferred medical provider because we can provide that free of charge to them and we get them the best quality treatment by occupational physicians. They treat work related injuries on a regular basis and know what they're about and they're usually pretty happy to come along to our preferred medical providers. I then explain to them - as they are an injured worker I'll explain to them the timeframes that we're expecting, what's going to happen to them, when they get their payments, what payments they could expect, explain the whole WorkCover process to them so that they're not scared of the foreseeable future, as such. I also explain to them that it can take up to 20 working days to make a decision on a claim. That's not usually the case with WorkCover, but with complex claims or claims that are a little bit different that it can take up to 20 working days. Most labour hire employees who are injured, all they want to really know is when will I got back to my job, or if I can go back to my job, when will they be paid and how much they'll be paid. So I explain all that to them very closely while they're filling out their paperwork for a WorkCover claim. I try to keep the paperwork as simple as possible. I've got it down, like a mound of paperwork is just way too much for injured workers to even try to sort out. So, I basically start with a statement of events, and they just write out the statement in their own words, a claim form and the authority to exchange information as a basic pack that I get them to fill out. That's all I need to lodge the claim, discuss it with WorkCover and go from there. With the client, I also get in contact with the client and discuss return to work duties with them from the onset. It's a case-by-case basis with many of our clients. As we're going along, the bigger clients are starting to take people back on suitable duties. I offer options, such as we can fully fund the suitable duties if you can't fund them and if they're going to be supernumerary on your site. So we can get WorkCover to fund the suitable duties, or they can do part-time suitable duties. I discuss with the client what sort of suitable duties may be available. They'll say, "Oh, look, this person can't sweep or can't dig, or whatever, but there is other duties there. They might like to do some training." And if they're not funding it, they might like the change of tasks and like some training and feel valued, that they're actually a valued employee who is getting further training in something else that the client has. I keep the clients updated with progress reports and any changes in their rehab or diagnosis so that we can change the suitable duties plan as we need to as we go along. Programmed always partner with specific treating general practitioners and build working relationships with them over many years. The best advice I can give you is to find a great private facility that can provide most of your treatment out of one place, and also use a large medical provider that has coverage in the regions where your workers live. We operate all over Queensland and only use one major private hospital, and one large medical provider that has occ physes in all the regions of Queensland. Invest your time and money in - or time, basically, it is, in your partnership and discuss your needs and requirements and they'll work with you. You've got to remember that they want your business if you're willing to work with them. So it works both ways. Treating medical specialists, sometimes we have quite severe injuries and we've had to engage treating medical specialists. It's often difficult in the regional centres to get appointments with treating medical specialists for some severe injuries. We had an incident one time where we had a person in Weipa who sustained quite a severe knee injury. When we took him to the doctor up there, the first thing was, "Oh, he'll need a specialist referral." That was going to be seven weeks away and an MRI was going to be another five weeks, or five weeks in that seven week period. We then requested from WorkCover that we could fly him to Brisbane, get him treated by our treating specialist down here. They agreed to that, they funded that. We got him down here the next day, he was seen in Brisbane, he had his MRI in Brisbane, he was operated on the same week, he was back on suitable duties within two weeks and back to normal duties by the seven week period, which was when he would have been seen by the treating medical specialist in a regional centre. WorkCover are very accommodating to work with us in trying to get the people back to work as soon as possible. We also engage with one or two rehab providers in Queensland and, again, I've worked with them to gain a good professional working relationship with them. They know what we require from our rehab team. We like to get our people back to full-time suitable duties as soon as possible and it helps reduce the claim costs and the claim times. Rehab providers can also suggest to us other clients that might be willing to take our people back on site, and we use them as well with working with the client. I work with the WorkCover claims advisors every single day. I advise them immediately when I've got a concern about a claim that I think might be a little bit out of the ordinary and not quite how it seems. I then notify the HSE team who go and do an in-depth investigation into it so that we can present all the information to WorkCover as soon as possible for them to make a determination on that claim. With the litigation side of claims in Queensland, we know that Queensland is a very litigious state. It's a no-fault system and they don't need any certain percentage of permanent impairment to go for common law. We've got many program divisions in property services professionals, electrical trades and facility management, and all our people in those permanent workers are all taken back to work on return to work as soon as possible. And we have very minimal common law claims out of that because they know that they're going back to their work, they've got work to continue on to and they're still valued as an employee. In the labour hire sphere it's a little bit different. Some clients don't take our workers back, for various reasons, and the candidate then looks for ways to get even, if you like, and they don't have the continued employment. There's lots of law firms out there who offer a no win, no fee signs to vulnerable persons and they're very easily accessible and the injured workers are quick to jump on this bandwagon if they feel they've been disadvantaged. I'll now hand over to Belinda from Kaden Boriss to advise further on the implications of common law with our businesses and clients.
Ms Hughes: Thanks, Kym. As Kym said, my name is Belinda Hughes. I'm a solicitor with a law firm called Kaden Boriss Legal. I'm one of the panel solicitors for WorkCover. From my perspective, return to work and demonstrating work capabilities of your workers has the biggest potential to be one of the better determinative factors in a potential common law claim or in a common law claim, but it's not all about the money. Statistically, we know that workers who feel engaged - and Kym touched on this - and feel supported, so straight after the injury there's contact with them, there's focus on returning them back to work, we know that they are less likely to bring a common law claim. And this, of course, is difficult given the nature of labour hire industries where you're dealing with transient workers, they haven't got permanent and ongoing employment, they're dealing with a labour hire organisation and a host employer in terms of points of conduct - of contact, sorry. All of those factors make it much harder, I guess, to manage a claim and to prevent a potential common law claim, particularly if they are worried about their ability to earn income into the future, and it becomes a little bit of a fork in the road moment, I guess. So, if a worker doesn't feel supported and there's no prospect of ongoing work, or certainly not at that stage, they may be more inclined, at that point in time, to seek legal advice from one of the no win, no fee law firms which, I guess, brings us, just quickly if I can touch on, both Ben and Kym talked about the no-fault scheme and, of course, that applies to one level of a workers' compensation claim, which is a statutory claim, which is no-fault. Of course, when a common law claim is lodged, and I always say sort of the second level of the WorkCover scheme, that is, of course, with fault that we look at, and we look at that with reference to legislation that's put in place showing the duties that an employer owes to a worker and, of course, there are similar duties owed by a host employer. So if it comes to that fork in the road moment and a worker doesn't feel supported and does seek legal advice, that affects not only the labour hire organisation who then faces a common law claim or a potential common law claim, it'll also affect the host employer because you can bet that if a claim is made against the worker, it's also going to be made against the labour hire organisation. And in these cases, when we're looking at liability and how liability is apportioned between the labour hire organisation and the host employer, as a rule of a thumb, we're looking at a 75/25 split. That is, that the host employer would bear, by far, the majority of exposure because they have control of that worker's workplace, of the tasks that they're undertaking, of the day to day supervision, where the labour hire organisation sits sort of to the side of that. But we are seeing more and more cases in New South Wales, in particular, where the labour hire organisation is avoiding fault altogether and the host employer is wearing all of that fault. That means that a common law claim has the potential to affect insurance policies for the labour hire organisation through their WorkCover policy, but also for the host employer through their public liability policy. Now, that requires them to pay an excess upfront. It also has the potential, if there's multiple claims, to affect the deductible and excess. So it's in everyone's best interests at the onset to make sure that they're properly managing these claims and making the workers feel supported and, of course, getting them back into work if they can. We know that even when this happens when a worker is return to work, there can be circumstances, and there quite often is, where they will still bring a claim but, again, having the worker return to work and re-engaged still gives us a better outcome at the end of the day. So when we are assessing damages and, putting aside the apportionment issues we discussed before, but just looking at the damages a worker might be eligible for from a common law claim, the biggest component is always economic loss. When we talk about economic loss we look at the income that worker was earning, or could potentially earn, and the income that they've lost because of the accident, so when they haven't been able to return to work or if they still haven't been able to return to work. When we look at their work capabilities and work restrictions after the accident, this comes from medical evidence and also what we've been able to see them demonstrate. So if they're not at work, quite often what we see is that they'll claim a full loss for economic loss. They'll say, "If it wasn't for this accident, I would have earned $1,000, say, a week, and I've now been out of work for so many weeks and there's no prospect of employment in the future. "Now, we'll dispute that, but that'll be their claim, and that's the high-water mark for them. On the other hand, if they've returned to work, but they've got some restrictions, either in terms of tasks they can perform or hours that they can work, we can look at whether those restrictions are likely to stay into the future, whether they've been accommodated by the employer and, of course, that will play into any award for economic loss. And then at the high point, I guess, for an employer or a host employer is that they've been able to return to work, they've probably initially returned on some suitable duties, they've worked back up into their normal role and they're demonstrating no actual loss of income and there's, hopefully, not a lot of loss of income in the future. Now, that doesn't mean that they won't be eligible for an award for future economic loss because the courts do something called - they give a global award for loss or disadvantage on the open labour market. So what the judge effectively says is, "I don't have a crystal ball and I know this person has been left with an impairment, they've got on with their life and they're working, but if they were ever to find themselves out of work and they didn't have a sympathetic employer, they might be less likely to get a job than someone, say, without that injury and because they've only got one bite of the cherry, one shot at bringing a claim, I have to put a figure on that." So, from a legal perspective when we're looking at those types of situations, we are looking at the level of impairment, the work restrictions, the income they're on, if it's likely to have any effect in the future, and similar cases. So there still can be an award for future economic loss when a worker is back at work doing their usual duties, but has been left with an impairment, but it will always be better than if they're not back at work. An example that comes to my mind on that point is a matter of Tompkins and Kemp Meats, which was a Townsville District Court decision, and probably the toughest jurisdiction to run a trial if you are an employer or a defendant. Now, in that case, Mr Tompkins, he worked as a slaughterman in an abattoir, he was one of the supervisors. He had a reasonably moderate or conservative injury to his thumb. It was a cut tendon. He got back to work after the incident, returned to his usual tasks. His evidence on trial was that he had some difficulties with his usual work tasks, but he still remained at work doing those tasks for that employer for a reasonable period of time before he decided to go into different employment, and he still got an award, and a reasonably significant award for future economic loss in the vicinity of about $200,000. So, despite these types of awards, but we do know that if workers are back at work, future economic loss will almost always be less than if they're not, and that's got to have a better affect on premiums, on excesses and public liability policies and it would be a better outcome for workers as well. I guess, for me, the take home message of return to work programs is that from a common law perspective, I think it will be the biggest area where we see positive change in claims and damages amounts coming out, and I know more and more often now, from my perspective, we're using occupational physicians and occupational therapists to comment not on work restrictions, but on work capability, so we're flipping the coin. We know that supporting injured workers through return to work programs assists them to get back on their feet and reduces the potential for them to bring a claim and, of course, prevention is always better than cure. But if the common law claim does eventuate, then looking at what tasks they can do and have been able to perform after the incident, whether they're doing that on an ongoing basis or they did that for a period of time, will reduce the damages awarded. But that's about all for me.
Ben: Thank you. Thank you to Kym and to Steve and Belinda for sharing some incredibly valuable insights. So we probably only have time, unfortunately, for a number of questions today because we're running a little shy of time, but I will go through a number of questions. So, Kym, a question for you, if you don't mind, that's been asked during today's presentation, could you please discuss an experience with overcoming or influencing a host employer that was potentially reluctant to participate in a return to work program with you?
Ms Barty: A host employer, not employee?
Ben: Yeah, a host employer. So a host employer may have been reluctant - I think the question is a host employer that's been reluctant to actively provide suitable duties for an injured worker.
Ms Barty: I will usually pick up the phone and speak with the host employer and ask why, and sometimes they've had a bad experience with someone going back to suitable duties and not doing as they're asked or not doing as they're trained to do, or taking an easy ride when they go back to suitable duties. I always consult with the host employer. Usually, the host employer, once I start to have a discussion with them and I'll say to them, "What about we do it on a case by case basis, and we try this person back on suitable duties, we'll fund them, we'll do them part-time hours and I'll come out each day or speak with them each day to see how they're going with their return to work," and we do it gradually and slowly, but it works very well. But we also ensure that they're at least working a decent amount of hours in that day, say, five or six hours a day. We don't start them on two, one hours, nothing like that, it's five or six hours a day. So they're out there, they're engaging with people, and I do pick the people who start with a host who is not willing to take people back. I do pick my candidates and ensure that they're usually a good candidate who wants to go back, who wants to return to the workplace and it works very well. I contact the host, the client each day just to make sure everything is going okay. If something has come up, I'll have a very, very frank discussion with them as to why, what's going on with them. Sometimes the candidates, they'll go out there and they don't want to be there for whatever reason. It could be school holidays, it could be lots of other things impacting on why they don't want to do the suitable duties, but we do work our way around getting the host on site. We've had a large drink manufacturer in Coca Cola, they never used to take people back on site, they're now working with us case by case. They'll take people back on site, do the suitable duties and it's working very well to both of our advantages.
Ben: Thank you, Kym. Thank you for sharing that. That's fantastic. So we've probably only got time for one more quick question because then we need to wrap up today's session, unfortunately. So we've had a question, will the slides be available offline following today's presentation? They certainly will be. Within about a week we'll have all the slides in today's presentation on our website. Any questions that we weren't able to address today we'll also address and we'll publish all of those via our website as well. So, thank you again for attending, we hope you gained some insight, and thank you again to our wonderful presenters who've added some incredible value in today's topic, and look out for further invites for some further sessions in the not too distant future. Thank you again.
Questions and answers
Answers to the questions we didn't have time to answer during the webinar are listed below. We also received questions that were specific to individual employers and have responded to these separately on an individual basis.
As a general starting point, if a worker can establish liability damages are often apportioned between a labour hire organisation and host employer on the basis that the labour hire organisation bears 25% of the exposure and the host employer bears 75% of the exposure. This division originates from a 2003 NSW Court of Appeal Case called TNT v Christie. Since that case was decided there have been lots of cases where Courts have had considered how liability should be split between the labour hire organisation and host employer . In Queensland one of the most prominent cases is Duong v Versacold Logistics, a 2011 Supreme Court case where the Chief Justice apportioned liability on the basis that the labour hire employer was liable for 30% of damages and the host employer was liable for 70% of damages.
While these cases provide some insight into how liability or damages may be split, the apportionment between the parties will be affected by a number of factors including:
- Who devised and implemented the system of work;
- Who was responsible for supervising the worker;
- Who owned and/or provided any faulty machinery or tools;
- Who employed any co-worker who was responsible for the accident;
- Who was responsible for providing training and was it appropriate;
- What is the make up of staff at the site – are they predominately labour hire (and are they being directed by the labour hire organisation in their tasks) and who employs supervisors (who are giving the directions);
- What are the circumstances of the incident – was the worker injured doing a task they were employed to undertake or something the labour hire organisation was not aware they would be doing;
- Has the labour hire organisation undertaken any risk assessments or just blindly placed the workers with the host without satisfying itself that the workplace is safe.
Most importantly, 'control' over the worker and what they were doing at the time they were injured is a critical feature to how liability will be split between the parties.