We recently received a very insulting message via our tip us off page stating “I think this site is a scandal in itself. If you people were genuine, you’d do everything in your power to help injured workers. I’m still waiting for the class action against workcover nsw. (Seems no one on this site is interested). I think this site is run by workcover….” [extract]. So, let’s address some of these ‘issues’, specifically the issue of class action(s).
Sometimes a wrongdoing can affect more than one person. If this happens, a specialised legal team (i.e. Shine Lawyers, Maurice & Blackburn, Slater & Gordon etc) can make a group claim on behalf of everyone affected. This is known as a class action. Class actions allow individual claims to be brought together in a single action against a defendant. One of the main advantages of joining a class action is that it can speed up the legal process and reduce hassle and cost.
If the case is successful, the Court can then fairly divide the compensation amount between the group. It is also important to known that Class action legislation varies between Australian states and territories.
It is NOT possible to commence a class action in order to change a law, such as for example the 2012 NSW workers compensation legislation (and to change it retrospectively). Frankly if it were even remotely possible, specialised law firms would have jumped at the opportunity! Read more about how laws can be changed in Australia below.
You may recall the “Class Action 15%” (NSW) launched by Vincent Marty, which consisted of a letter/petition to the Prime Minister re the 2012 NSW workcover legislative changes, particularly focused on the elevated whole person permanent impairment of 15%
Currently the link to this “class Action 15%” states the following:
Due to the lack of interest of injured workers to do something to get them out of their situation and because they expect someone else will do something about the situation, the Governments have won and have taken away our rights to compensation…as nobody care, why should I ? ..I tried for 3 years but nobody want to help themselves; In addition injured workers see me as a trouble maker that will end up making the situation worse for all? WTF! ???
In fact many people, incl. many injured workers and advocates (including aworkcovervictimsdiary) have attempted mass petitions for change,without success. For some reason it is painfully difficult to have injured workers (or any interested person) to sign such petitions. Perhaps this is because injured workers are worried about potential ‘repercussions’ (ie. from workcover, insurer etc) by publicly signing their names…?
What are Class Actions really?
A “class action” lawsuit is one in which a group of people with the same or similar injuries (or damage) caused by the same product or action sue the defendant as a group. People seek justice in class action lawsuits when their injuries have been caused by defective products, including pharmaceutical drugs, motor vehicles and other consumer products, and medical devices. Other types of conduct over which people have sued as a class include consumer fraud, corporate misconduct, securities fraud, and employment practices. Another type of class action lawsuit is is a multi-party lawsuit based on a massive accident, such as an airplane crash, in which many people are injured or widespread personal injuries caused by a defective product, such as a medical device.
More specifically, in Australia a class action is a term used for a court proceeding where the claims of a large group or “class” of persons are brought by one or a small number of named class representatives against the same respondent(s). They are also known as representative proceedings. In Australia, there are regimes for representative proceedings in both the Federal Court and in the State Supreme Courts. The NSW and Victorian Supreme Court regimes mimic that of the Federal Court, while some of the other States have a different model.
In Australia, a class action can be commenced where:
- seven (7) or more people have claims against the same person(s);
- the claims are in respect of, or arise out of, the same, similar or related circumstances; and
- the claims give rise to at least one substantial common issue of law or fact
There are many examples of class action lawsuits
For example, a class may consist of:
- a group of employees (workers) who were subjected to race discrimination
- a number of patients who were prescribed a drug with harmful or damaging side effects
- a neighbourhood of residents whose homes or families were injured by a toxic spill
- all the consumers who purchased a defective product that caused them injuries,
- or corporate investors who suffered fraud in the purchase or sale of stocks and other securities
In Australia there have been and are several Class Actions running by several specialised law firms in a diverse range of area such as:
- Shareholder class actions involving disclosure obligations, misleading and deceptive conduct by companies in takeovers, in prospectuses and in releases to the ASX
- Consumer actions such as the unfair bank fees case and Cash Converters payday lending case
- Negligence claims as highlighted by the current Queensland floods and Black Saturday bushfire actions
- Cartels involved in price fixing and market rigging, such as Amcor Visy and the Air Cargo class action, and
- Defective product cases for things like breast, knee and hip implants
Current Class Action Examples in Australia include:
- DePuy / Johnson & Johnson Hip Replacement Class Action – Shine Lawyers
- Johnson & Johnson/Ethicon Mesh Class Action – Shine Lawyers
- AMS Mesh Class Action – Shine Lawyers
- ANZ and RBS Class Action – Shine Lawyers
- Read more about Class Actions by Shine Lawyers>>
- Hepatitis C – Slater & Gordon
- Hastie Group – Slater & Gordon
- Immigration Detention – Slater & Gordon
- NZ Bank Fees – Slater & Gordon
- Thalidomide – Slater & Gordon
- Read more about all current Class Actions by Slater & Gordon>>
- Credit Card late fees – Maurice Blackburn Lawyers
Class actions are or can be a highly effective and efficient form of “civil litigation”.
As you can see, you can’t just start a class action in order to change a law, because you have not been ‘injured’ or ‘damaged’ by a specific product, a toxic spill, fraud and deceptive conduct etc. But, yes, you (and we) are in effect all insulted and most of us do suffer major damage and loss because of introduction/amendments of harsh and unfair state workers comp legislation(s).
So how are laws changed in Australia?
There are several ways to change a law in Australia. Often if a law needs to be amended/changed, it is because of public pressure and lobbying. Once the interest is noted, law reform commissions sometimes undertake research into the laws, make recommendations for reforms and present them to parliament – this process involves expert consultation, public submissions and the like. Sometimes the Senate may also hold an inquiry into certain laws.
Once parliament has received submissions to change a law, then it goes through the normal law making process (i.e. first, second, third reading, debate, votes etc) in both the lower and upper houses. If it is passed then it needs to receive Royal Assent.
Sometimes it’s only part of an Act that needs to be changed, maybe only one or two sections. For example if I have an act called the ABC Act 2012 and Section 12 needs to be changed, rather than changing the act all together, it is likely that Parliament will pass an ABC Amendment Act 2012 with the new Section 12 and repeal the old Section 12.
The other ways that laws can be changed is through judicial interpretation. This is where the courts interpret the meaning of a Statute in a different way, thus effectively changing the law. Generally this happens with the Constitution as the Constitution can only be altered through judicial interpretation or referendum (explained next) and judicial interpretation is much simpler!
For example, s 51(xx) of the Constitution is known as the corporations power – this gives the federal government the exclusive right to legislate regarding corporations. When “Workchoices” came in, it was argued by the State governments that the Federal government did not have the right to make laws regarding industrial relations. The Federal government argued that the corporations power could be expanded to include the internal structure of corporations in Australia, thus allowing them to legislate regarding employment contracts. The High Court agreed with this argument, and as such, the meaning of corporations has expanded to include internal and external workings of corporations.
Finally a referendum is a way to change the Constitution. The Constitution can only be changed in two ways, judicial interpretation (as explain above) and referendum. A referendum is a vote put to Australian citizens regarding a proposed change to the Constitution. For instance in 1999 there was a referendum held to decide whether Australia should become a republic.
In order for a referendum to succeed, not only must a majority of citizens vote in favor of the change (50% plus 1) but a majority of states/territories. This makes it quite difficult to referendums to succeed indeed. Whilse many referendums have been held in the past, only a few have succeeded, such as women’s right to vote, aboriginal right to vote etc.
Finding out about laws that have been changed: note
If you look at an Act (i.e a Workcover Act), many of them have a ‘legislative history’ section at the end which shows details of all the changes that have been made to that Act since it was first made.
If you want a federal law, you will find them at http://comlaw.gov.au
Each state also has its own website for legislation. You should be able to find them easily enough.
All Australian legislation (pretty much) can also be found at http://austlii.edu.au
What a workcovervictimsdiary is about: as stated on our “about” page:
First of all, we’re not going to misrepresent ourselves – that is aworkcovervictimsdiary- and tell you that we have special influence(s) with state legislators and even politicians. We don’t, and neither do some of the others, or we would already have meaningful, fairer workcover legislation signed into law to really help injured workers survive this ordeal known as workcover, work-over or workers compensation.
Our primary goal is to help, assist, educate, inform and empower injured workers to better understand how to navigate through an ever complicated and convoluted workcover system and not become victims of overzealous workcover insurances and their investors (stakeholders). One way we accomplish this is through aworkcovervictimsdiary, a site that is more than just a ‘glorified’ blog, which provides very important information resources for Australian injured workers! Read more here>>
Class actions in Australia
The following Australian Papers and Guides adopt a mainly Q&A approach to discuss: what a class action is; how they are commenced; how they are funded; their recent history; the types of claims which are being brought; and
the main issues and trends with regard to their future.
- Class Actions in Australia (Ashurst)
- Class Actions in Australia: An Overview (Clayton Utz)
- Class actions in Australia (Allens)
- Access to justice and the evolution of class action litigation in Australia (B Murphy and C Cameron)
How the law is made in Australia
Specific NSW support and lobbying sites
PPS Note that aworkcovervictimsdiary is based in Victoria. Our knowledge of the intricate details of other state legislation(s) is therefore limited.
[Article by WCV and WCV3]