Workers Compensation is a social legislation, put in place to protect workers (and as a result, employers) from financial and social impact of workplace injuries. Ensuring appropriate treatment and compensation occurs in a timely manner is often touted as being pivotal to a successful and sustainable recovery. This is accepted as fact by most. However in the world of employers, we also know there are more facets to the Workers Compensation field than the obvious ‘warm and fuzzy’ side.
The bureaucratic world of Injury Management / WorkCover can be overwhelming to many employers. We have the premium/policy components, legislative requirements, administrative obligations, as well as ensuring the safety (physical and emotional) of our employees. It is hard to keep abreast of all those areas, and one of the more common areas that clients seek our advice/assistance on is the conciliation process.
Conciliations in Victoria are an entitlement to an injured worker, who can appeal decisions on a claim as outlined within the Act. The Accident Compensation Conciliation Service is an independent body established to oversee and facilitate these conciliations when a worker requests a conference to be held. Once the request has been submitted, an employer receives notice of request for conciliation, and once a date has been confirmed; are notified of the time and date of the conference; should they elect to attend.
We use the term elect to attend as an employer does not have to be there – though we would always recommend a representative of the organisation be in attendance for a number of reasons. The biggest mistake many employers make is the assumption that a conciliation is between the worker and them. This is simply not the case. The conciliation is a process between the employee and the insurer. The employer is invited to attend as a stakeholder, though is not an active participant and only speaks at the request of the Conciliation Officer.
Whether a worker is seeking conciliation as a result of a termination of services (medical and like), weekly payments, rejection of a claim, or other matters – it is up to the two parties (claimant and insurer) to reach an outcome. The process of conciliation is a pseudo formal one, though not an arbitrary process. I will not go into the ins and outs of what to expect at conference, as there is sufficient documentation available on this matter already. I am more concerned with ensuring employers are aware of their place in the process, and how they can contribute to a resolution, and what that resolution may entail.
Points to note about conciliations:
- Conciliations are processes of compromise and aimed at facilitating outcomes, they are not arbitrary
- Generally speaking, Conciliation Officers (CO) do not have ‘powers’ to determine decisions (Directions are very rare) but facilitate negotiations
- Conciliations are between parties, not legal representatives. It is not a place for legal practitioners, but worker advocates. Most COs will not want legal practitioners to attend conferences. As an employer, you should not endorse this occurrence either
- The objective of reaching a resolution will usually mean coming to an agreement, under recommendation – whereby some compromise is sought
- Conferences are private matters, with discussions held therein not being able to be referred to in other legal forums at a later date
- If an agreement cannot be made, the CO must determine if there is an arguable case (in factual disputes). If there is, the matter will be cited as a Genuine Dispute and the matter will be addressed in the Magistrates Court, should the worker acquire legal representation and pursue that avenue
- In the event of medical disputes, where no agreement is made, the matter may be referred to the Medical Panel, whereby WorkSafe appointed doctors will make a decision on the dispute. That decision is binding
- On many occasions, decisions cannot be made on the day and an Adjournment is given, allowing time to seek further information/documentation or to make a decision on any offers made at the conference
- There are sometimes opportunities to facilitate an outcome prior to conference – particularly when an appropriate outcome is quite clear to most parties (in particular insurer and CO). This is often a preferable outcome as conference can be avoided altogether, though all parties must be open to the idea and comfortable with pre-conference agreements
- Employers must be available (physically or by phone or prior agreement) to the insurer to comment on offers being made
Workers are entitled to bring a support person, often WorkCover Assist or their union representative. Normally these people should be noted on their request for conciliation. Insurers do not have the right to a support person, though as stated the employer is entitled to attend and they would sit next to the insurer.
Conciliations are often held for contentious issues, whereby a worker disagrees with a decision to reject or terminate a claim. In these matters, emotions can run high – particularly when they are in relation to Emotional / Psychological conditions. Open, transparent and empathetic approaches to conciliation are paramount in these situations, and being guided by your Injury Management Consultant can make the difference between a positive or potentially negative outcome for the employer. Sometimes Conciliation Officers will hold split conferences in these matters, and again having an expert representing your organisation (both from Insurer and Employer perspectives) is essential.
Your Injury Management consultant will have strong relationships with the insurance Dispute Resolution Officers, so as soon a notice of conference has been received, please ensure you consult your allocated Injury Manager. As referred to in the title of this post, conciliation in Victoria is indeed an art form, and ill-prepared parties will walk away from conciliations with potentially displeasing outcomes, which can impact the organisation’s WorkCover premium, as well as workplace dynamics – not just the health and well-being of the claimant.
Guiding the insurer as to the ins and outs of the case, identifying the feasibility of returning to work or other factors are roles of the employer (or preferably your Consultant on your behalf). Your consultant also has the added luxury of being somewhat independent and will not bring emotions or preconceived opinions to a conference, allowing them to convey unbiased viewpoints at the meeting, with the objective of obtaining a fair and equitable result which does not negatively impact the organisation.
Should you have queries about potential or upcoming conciliations, or wish to seek clarification on past conferences please contact your Injury Manager. Conciliations are often the last port of call to facilitate outcomes or uphold terminations before the matters turn litigious – involving further costs, administrative efforts and are inevitably long term in their tenure.
Please note, the Victorian ACCS and their Conciliation Conference process is specific to Victorian Workers Compensation claims, and is not applicable to claims managed under interstate jurisdictions.