ADJUDICATIVE STRUCTURES AND THE HISTORICAL DEVELOPMENT OF COMPENSATORY LAW
3. SOUTH AFRICA
5.4. Australian com pensatory legislative framework
Various compensatory laws are effective in the Australian Commonwealth because each jurisdiction has enacted at least one compensatory law of which eleven335 of the workers' compensatory laws are considered to be the "principal" statutes with main objectives to provide satisfactory monetary compensation, appropriate rehabilitation and reintegration into the workplace, affordability of premiums and fully funded by employers.336 The differences can be ascribed to differences in demographics and social, economic and cultural factors designing the particular scheme.337 The multiplicity of compensatory laws is viewed as one of the reasons for burdening the economy, employees and employers with inadequacies and encumbers employers to comply with health and safety requirements and expenses.338 Multi-state employers are faced with compliance and cost burdens as each of the workers' compensatory laws "reflects community norms, evolving workplace arrangements and the legal and medical practices of that particular jurisdiction".339 In addressing these problems as well as the concerns of a growing mobile labour force, the Productivity Commission proposed an alternative national scheme operating in addition to the existing schemes to provide national coverage.340 Furthermore, a formal review mechanism is proposed to increase the
331 Ibid 56.
332 ibid 62.
3 3 3 Ibid 63.
3 3 4 Ibid 70.
335 Queensland Workers’ Compensation Inquiry 2013 at 9.
336 Productivity Commission Report (2004) at XXII indicates ten principal workers' compensatory laws in Australia.
337 Purcal, S & Wong, A. 2007. Australian workers' compensation: A review. At 1. Retrieved on 14/08/2013 from
http://wwwdocs.fce.unsw.edu.au/actuarial/research/papers/2007/AustWorkComp_Purcal.pdf.
338 Productivity Commission Report (2004): XXII.
339 Ibid XXIII.
3« Ibid XXIII.
level of consistency and uniformity between jurisdictions with time to benefit all employees, employers and the economy.341 However, it was not well received and during the inquiry phase the Queensland Law Society referred to it in lucid terms in its submission to the Productivity Commission. It warned that the presentations to the Commission opened a "debate upon irreconcilable differences in those schemes which have been identified by governments as properly within the sovereign decision-making powers of the respective States and Territories".342 The Law Society was very clear on its stance and submitted that:343
...it is unrealistic to contemplate legislating for "consistent workers’
compensation programs across Australia" or for a "consistent benefits structure". The existing Australian schemes are simply not amenable to a
"one size fits all" approach. Matters such as common definitions can, as has been mentioned above, be addressed by amendments agreed between all jurisdictions and enacted in their respective legislation and no special Commonwealth legislation is required to effect that accord.
Similar to Canada, some of the Australian States have more than one compensatory law specific to a particular group344 e.g. New South Wales enacted the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 83 of 1987 as well as the Workers Compensation Act 70 of 1987. Similar to Canada, not all of the Australian laws will be perused for the purposes of this study but only one act per aspect under discussion and for ease of reference the name of the State will be utilised rather than the name of the specific act, e.g. New South Wales rather than New South Wales Workers Compensation Act 70 of 1987,345
3« ibid XX.III.
342 Queensland Law Society. 2003. Accident compensation submission re Workers' Compensation.
(Sullivan, T.: President). At 1. Hereinafter: Queensland Law Society Submission 2003. Retrieved on 14/08/2013 from http://www.pc.gov.au/__data/assets/pdf_file/0006/19626/sub097.pdf.
343 Ibid 3.
344 Productivity Commission Report (2004): XXII, XXX-XXXII & 5.
345 Commonwealth: Safety, Rehabilitation and Compensation Act 75 of 1988. Retrieved on 12/06/2010 from http://www.austlii.edu.au/au/legis/cth/num_act/ceracal988534/.
Australian Capital Territory: Workers Compensation Act 1951. Retrieved on 12/06/2010 from http://www.austlii.edu.au/au/legis/act/consol_act/wca1951255/.
New South Wales: Workers Compensation Act No 70 of 1987. Retrieved on 12/06/2010 from http://www.austlii.edu.au/au/legis/nsw/consol_act/wcal987255/.
Northern Territory: Workers Rehabilitation and Compensation Act 13 of 2008. Retrieved on 25/09/2010 from http://www.austlii.edu.au/au/legis/nt/consol_act/wraca400/.
Queensland: Workers’ Compensation and Rehabilitation Act 2003. Retrieved on 12/06/2010 from http://www.austlii.edu.au/au/legis/nt/consol_act/wraca400/.
5.5. Problem atic issues
Fragmentation is rife in Australian compensatory legislation due to the constitutional government system of the country which empowers each jurisdiction to govern independently and promulgate its own statutes as needs.346 This resulted in eleven347 different principal workers' compensatory laws with another twenty- nine subject specific statutes.348 Fragmentation was increased by disparate
South Australia: Workers Rehabilitation and Compensation Act 124 of 1986. Retrieved on 12/06/2010 from http://www.austlii.edu.au/au/legis/sa/consol_act/wracal986400/.
Tasmania: Workers Rehabilitation and Compensation Act 4 of 1988. Retrieved on 06/05/2012 from http://www.austlii.edu.au/au/legis/tas/consol_act/wracal988400/.
Victoria: Accident Compensation Act No. 10191 of 1985. Retrieved on 12/06/2010 from http://www.austlii.edu.au/au/legis/vic/consol_act/acal985204/.
Western Australia: Workers' Compensation and Injury Management Act 44 of 1981. Retrieved on 12/06/2010 from http://www.austlii.edu.au/au/legis/wa/consol_act/wcaimal981445/.
346 Purse, K, Guthrie, R & Meredith, F. 2004. Faulty frameworks: The Productivity Commission and workers' compensation. Australian Journal o f Labour Law, 17(3): 306-316. Hereinafter: Purse 2004.
Retrieved on 03/05/2012 from
http://ura.unisa.edu.au/R/?func=dbin-jump-full&object_id=unisa26596.
347 Queensland W orkers’ Compensation Inquiry 2013 at 9.
348 New South Wales: Associated General Contractors Insurance Company Limited Act 38 of 1980.
Retrieved on 30/06/2011 from
http://www.austlii.edu.au/au/legis/nsw/num_act/agciclal980n38564.
New South Wales: Bishopsgate Insurance Australia Limited Act 81 of 1983. Retrieved on 30/06/2011 from http://www.austlii.edu.au/au/legis/nsw/num_act/bialal983n81411.pdf.
New South Wales: The Standard Insurance Company Act 18 of 1963. Retrieved on 05/08/2011 from http://www.austlii.edu.au/au/legis/nsw/num_act/tsiclacoical963nl8712.pdf.
New South Wales: Workers’ Compensation (Brucellosis) Act 1979 (repealed in 2004). Retrieved on 30/06/2011 from http://www.austlii.edu.au/au/legis/nsw/repealed_act/wcal979379/s2.html.
New South Wales: Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 83 of 1987. Retrieved on 03/07/2011 from
New South Wales: Coal Industry Act 107 of 2001. Retrieved on 03/07/2011 from http://www.austlii.edu.au/au/legis/nsw/num_act/cia2001nl07197.pdf.
Victoria: Victoria State Emergency Services Act 1987. Retrieved on 05/08/2011 from http://www.austlii. edu.au/au/legis/vic/hist_act/vsesa1987330/.
Victoria: Juries Act 53 of 2000. Retrieved on 05/08/2011 from http://www.austlii.edu.au/au/legis/vic/consol_act/ja200097/.
Victoria: Emergency Management Act 75 of 1986. Retrieved on 05/08/2011 from http://www.austlii.edu.au/au/legis/vic/hist_act/emal986190/.
Victoria: Police Assistance Compensation Act 1968. Retrieved on 05/08/2011 from http://www.austlii.edu.au/au/legis/vic/hist_act/pacal968307/.
Victoria: Country Fire Authority Act 1958. Retrieved on 05/08/2011 from http://www.austlii.edu.au/au/legis/vic/hist_act/cfaal958292/.
augmentation of benefits through legislative amendments in the different jurisdictions and resulted in the system being described as "dysfunctional".349
A proposal for a National Framework with a "national Authority" on workers compensation in 1994 by the Industry Commission was met by strong resistance in 1994 and again in 199 7.350 The persistent need to harmonise coverage and compensation benefits while remaining sustainable eventually led to the founding of the Agreement by the States and Territories on Harmonisation of Workers Compensation and Occupational Health and Safety Arrangements (2 0 0 6)351 and subsequently the Heads of Workers' Compensation Authorities to issue an action plan to harmonise coverage and benefits between the different jurisdictions for the
Western Australia: Workers’ Compensation and Injury Management (Acts of Terrorism) Act 40 of 2001. Retrieved on 30/06/2011 from
http://www.austlii.edu.au/au/legis/wa/consol_act/wcaimota2001629/.
Western Australia: Employer’ Indemnity Policies (Premium Rates) Act 96 of 1990. Retrieved on 30/06/2011 from http://www.austlii.edu.au/au/legis/wa/consol_act/toc-E.html.
Western Australia: Employers’ Indemnity Supplementation Fund Act 80 of 1980. Retrieved on 30/06/2011 from http://www.austlii.edu.au/au/legis/wa/consol_act/toc-E.html.
Western Australia: Waterfront Workers (Compensation for Asbestos Related Diseases) Act 22 of 1986. Retrieved on 05/08/2011 from
http://www.austlii.edu.au/au/legis/wa/consol_act/wwfardal986644/.
Western Australia: Workers’ Compensation (Common Law Proceedings) Act 35 of 2004.
Retrieved on 30/06/2011 http://www.austlii.edu.au/au/legis/wa/consol_act/wclpa2004459/.
South Australia: Workmen's Compensation Act 36 of 1971. Retrieved on 23/07/2011 from http: //www.austlii. edu.au/au/legis/sa/num_act/19 71 /.
Tasmania: Workers’ (Occupational Diseases) Relief Fund Act 45 o fl954. Retrieved on 23/07/2011 from http://www.austlii.edu.au/au/legis/tas/consol_act/wdrfal954404/.
Australian Capital Territory: Workers Compensation Act 1951. Retrieved on 23/07/2011 from http://www.austlii.edu.au/au/legis/act/num_ord/wcol951316/.
Common Wealth: Asbestos Related Claims (Management of Commonwealth Liabilities) Act 122 of 2005. Retrieved on 23/07/2011 from
"Any statutory framework which inhibits the flexibility of the States to fix policy is unnecessary, counterproductive and must be opposed.”
351 Australian Capital Territory. 2006. Chief Minister and Treasury Directorate. Agreement by the States and Territories on harmonisation o f workers' compensation and occupational health and safety arrangements. Retrieved on 12/05/2012 from
http://www.cmd.act.gov.au/__data/assets/pdf_file/0008/119483/caf-harmonisation-iga.pdf.
See furthermore Chapter 4 paras 2.4; 3.4 & 4.4 and Chapter 5 paras 2.10; 3.7 & 4.7 on the effect of the inter-state arrangements in Canada and Australia and the lack thereof in South Africa.
years 20 1 0-20 1 3.352 This is not accepted by all jurisdictions and implementation is varied with the Territories and three of the States on par with time limits, two States in progress and two States in resistance to harmonisation.353
The Constitution of Australia does not empower the Federal Government with respect to workers’ compensation over the States but it may use specific powers e.g.
the “corporations power" to enable the implementation of a new national insurance scheme.354
A particular characteristic of the Australian compensatory legislative history is the repeated cycle355 of the development of seemingly too generous compensation benefits and access to compensation by means of too lenient measures causing problems of sustainability and affordability356 which then needs to be constrained in a continuous process357 of legislative changes358 which process was influenced by the philosophy of the government of the day.359
352 Safe Work Australia. 2010. The National Workers' Compensation Action Plan 2010—2012.
Canberra: Safe Work Australia. Hereinafter: The National WC Plan 2010-2012. Retrieved on 30/07/2011 from http://safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/
Publications/Pages/WCPlan2010-2013.aspx.
353 Cairns, A. 2012. Work health and safety harmonisation - after the deadline. Electronic article retrieved on 05/05/2012 from http://www.moray.com.au/publications/work-health-and- safety-harmonisation-after-the-deadline/.
354 Productivity Commission Report (2004): 112.
355 Taylor, S. 2005. Workers' compensation amendments: for better or worse? Proctor 25(3):13-14.
Retrieved on 05/05/2012 from http://0-search.informitcom.au.oasis.unisa.ac.za/fullText;
dn=20051806;res=AGISPT. See further Fountain, J. 2009. Amendments to the weekly payments provisions of the Workers Rehabilitation and Compensation Act 124 of 1986. Bulletin (Law Society o f SA): 31(7): 16-17. Retrieved on 05/05/2012 from http://0-search.informit.com.
au.oasis.unisa.ac.za/fullText;dn=20093437;res=AGISPT. Purse, K. 2003. Australian workers' compensation policy: Conflict, step-downs and weekly payments. International Employment Relations Review: 9(1): 23-44. Hereinafter: Purse 2003. Retrieved on 25/05/2012 from http://0- search.informit.com.au.oasis.unisa.ac.za/documentSummaiy;dn=165031633647043;res=IELBUS.
356 Williamson, BC, 1991. Amendments to New South Wales Workers Compensation Legislation.
Australian Journal o f Labour Law: 4(1): 6 2 -7 2 . Retrieved on 03/05/2012 from
http://0-www.lexisnexis.com.oasis.unisa.ac.za/hottopics/lnacademic/?verb=sr&csi=267868.
357 Adams, KL. 2005. Here we go again: The Accident Compensation Act 1985 (Vic) and the amendment merry-go-round. Australian Journal o f Labour Law: 18(2): 158-172. Retrieved on 03/05/2012 from http://0-www.lexisnexis.com.oasis.unisa.ac.za/hottopics/lnacademic/?verb=sr&csi=267868.
358 pUrse, K. 2009. From WorkCover to WorkCover Light in South Australia. Australian Journal o f Labour Law 22(2): 188-206. Hereinafter: Purse 2009. Retrieved on 05/05/2012 from http://0-www.lexisnexis.com.oasis.unisa.ac.za/hottopics/lnacademic/?verb=sr&csi=267868.
3^ ISCRR 2.
5.6. Summary
Legislative developments on workers' compensatory legislation in Australia are notorious for periods of rapid amplification of benefits in favour of employees followed by periods of a limitation of such rights. It is greatly influenced by the political philosophy of the government of the day with Labour Governments enhancing benefits to workers and Conservative Governments retracting them.360 The workers' compensatory system in Australia is characterised by fragmentation which is being addressed by a process of harmonisation which is inclusive of the Commonwealth Government and all the different States.361
6. CONCLUSION
In this chapter the historical development of workers' compensatory legislation was explored to identify the need for this type of laws. It is clear that although legislative provisions were made since antiquity for monetary compensation, the Industrial Revolution intensified the need for redress other than what was available at common law. Workers who could afford it participated in social assistance schemes since the Middle Ages but because not everybody could afford it, it too was unsatisfactorily. Actions under common law were known to be expensive, onerous and protracted processes with often unsuccessful outcomes due to the relatively solid common law defence principles that favoured employers. This led to the Bismarckian model of workers' compensation which has been refined by Meredith in Canada to develop legislation suigeneris to Canada.362
South Africa is a republic with a central government with a supreme Constitution including a Bill of Rights which protects the rights of its citizens and other people within its jurisdiction. COIDA and ODIMWA are the two workers’ compensatory laws enacted to provide social security benefits in times of distress to people in formal employment, which leaves people in other forms of employment without
360 Chapter 2 fn 3 0 5 -3 3 3 supra.
361 Chapter 2 fn 333 & 3 5 5 -3 5 3 supra.
362 Chapter 2 fn 211 supra.
social security benefits.363 Canada364 and Australia365 have federal systems of government and although both also have written constitutions, Australia does not have a Bill of Rights similar to South Africa and Canada. The federal systems of government allow for jurisdictional enactments which in both Canada and Australia lead to multiple workers' compensatory laws.366 As the South African compensatory system is notorious for its fragmentation, it is equally true of Canada and Australia.367
All three countries fall within the common law legal tradition and all three countries have a judicial system that follows the stare decisis doctrine. Administrative review of decisions regarding workers' compensatory provisions is aimed at providing a review mechanism that is easy, accessible and cost effective. All three of the countries provide for a limited right of review often complicated by technicalities created by both statute and through interpretation.368
Although South Africa escaped the dreadful consequences of the Industrial Revolution, the equally dreadful consequences of the mining industry influenced and magnified the need for the enactment of workers' compensatory legislation.369 South Africa took the lead with legislation pertaining at compensation for lung diseases due to mining but neither ODIMWA nor its antecedent acts were developed resulting in an outdated compensatory scheme in place at present.370 South Africa absorbed the principles laid down by Meredith in the 1941 Act which Act did not cover all employees or incidents.371 The definition of an employee was broadened over time with racial discrimination and fragmentation being some of the negative aspects characterising workers' compensatory legislation in South Africa from its inception.372
363 Chapter 2 fn 2 -4 , 58-60 and Chapter 2 para 3.3 supra.
364 Chapter 2 fn 170 & Chapter 2 paras 4.1 & 4.2 supra.
365 Chapter 2 para 5.1 supra.
366 Chapter 2 paras 4.3; 4.3 & 5.1 supra.
367 Chapter 2 paras 3.5; 4.4 & 5.5 supra.
368 Chapter 2 paras 3.2; 4.2 & 5.2 supra.
369 Chapter 2 para 3.3 supra.
370 Chapter 2 fn 9 3 ,9 4 & 1 2 2 -1 4 2 supra.
371 Chapter 2 fn 1 1 4 -1 1 6 & 216 supra.
372 Chapter 2 fn 1 1 7 -1 2 1 supra.
Chief Justice Meredith laid down the principles that encompassed the historic trade
off and still form the basis of workers' compensatory legislation in all three countries at present (although Australia did not follow the principles perse, it is also applied in Australian compensatory laws). The historic trade-off principle came under constitutional attack in both South Africa373 and Canada374 but in Australia a limited right to sue at common law can be exercised.375
Developments in Australian workers' compensatory laws were influenced by the political philosophy of the day which reveals the socio-economic foundation of workers' compensatory legislation as part of the social security framework.376 Fragmentation and complicated systems have been identified as obstacles in all three countries but with Australia implementing an integrated system.377
The importance of administrative law cannot be denied and its specific applicability in the field of workers' compensation is real as it sets the limits for official decision makers and provides the mechanisms and principles that facilitate people to query and challenge an official's decision.378
In this chapter it was demonstrated how and why the right to workers’
compensation was developed and laid down in legislation. Furthermore the adjudicative structures of South Africa,379 Canada380 and Australia381 were introduced to enable an understanding of the stare decisis doctrine and ratio applied in court cases in the three countries under discussion. This chapter also explored the right of access to courts for the purposes of review and appeal.
The role of the tripartite relationship of social partners as regulated by legislation on occupational injuries and diseases in order to balance the interests of state,
373 Chapter 2 fn 2 & 141 supra.
374 Chapter 2 fn 2 4 2 -2 4 6 supra.
375 Chapter 2 para 3.3 supra.
376 Chapter 2 fn 3 0 6 -3 3 4 supra.
377 Chapter 2 fn 3 3 5 -3 5 4 supra.
378 Chapter 2 fn 4; 2 8 0 -2 8 9 and Chapter 2 paras 3.2; 4.2 & 5.2 supra.
379 Chapter 2 para 3.2 supra.
380 Chapter 2 para 4.2 supra.
381 Chapter 2 para 5.2 supra.
employer and employee by the creation of a right to no-fault compensation in the form of an administrative remedy which is categorised as a form of social security, was pointed out.382
The right to workers' compensation as provided for in COIDA and ODIMWA will be examined in relation to similar legislative provisions and juridical developments in Canada and Australia in the next chapters.
382 Chapter 2 paras 1 & 2 supra.
CHAPTER 3
THE ADMINISTRATIVE NATURE, PURPOSE AND INTERPRETATION OF