I am an injured worker who is desperate to change or at least bring more attention to the disgraceful actions of WorkCover NSW and their insurers, Your blog has been a support to me so much that I have been able to begin fighting back for my rights & my sanity! Please share this on your blog if you can!
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).
Doug Ewart from Pearl Beach, NSW has started this petition on behalf of all the workers in NSW. This petition (started 18 Nov 2014) is important because people are facing financial & emotional hardship due to the changes to the workers compensation scheme (WorkCover NSW)
The LNP government’s changes to workers’ compensation QLD rammed through Parliament last Thursday will hit the most vulnerable in our society – the families and children of injured workers.
Injured worker Vincent Marty Vincent is running an important petition requesting a Royal Commission because the insurance companies and the medical specialists (IMEs) workcover uses and practices are corrupt.
Thanks to At A Loss we were made aware of an important Petition running on Community Run called “Class Action 15%“, launched by Vincent Marty. We would urge all injured workers to sign this petition!
Thanks to At A loss, we were made aware that a someone, presumably an injured worker, wrote an appeal for a potential class action for workcover NSW legislation on Aussie Legal Forum, which may have some merit? Saying that, if a class action were possible, we believe we would have heard from interested law firms by now…? What do you think?
Thanks to @CorruptNSW we were alerted via Twitter that Hornsby workers have thrown their support behind a petition, launched by Labor MP Greg Donnelly, calling on the state government to scrap controversial workers compensation laws.
Workers in battle to halt workers compensation changes
Workers in battle to halt compo changes
Suzanne Barros, who has worked at Myer for the past 32 years, is collecting signatures after Labor MP Greg Donnelly launched the petition recently.
Mrs Barros, a union delegate, said her fellow workers were surprised and shocked at changes which include reduced payments for injured workers and a removal of coverage for employees travelling to and from work.
Mr Donnelly said the changes were a wholesale attack on the industrial rights of the state’s 3.5 million workers and their families.
“This government has passed changes that will completely cut off benefits to large numbers of injured workers after five years, even if the injury is permanent and you cannot return to work,” he said.
The great APS Dignity Blog – OZloop- alerted us viaFacebook to their most interesting article: The Australian Public Service (APS) Knows that Compulsory Psychiatric Referrals are Unlawful, Unethical and Abusive; So it is Now Time for a Class Action!
APS knows that compulsory medical and psychiatric referrals are unlawful
The Australian Public Service (APS) Knows that Compulsory Psychiatric Referrals are Unlawful, Unethical and Abusive; So it is Now Time for a Class Action!
Earlier, APS Dignity wrote about the use and abuse of compulsory psychiatric referrals under the Public Service Regulations 1999 as a victimisation tool against whistleblowers (that is, any APS employee who makes a complaint about a potential breach of the APS Code of Conduct), and how the Australian Public Service Commission and Comcare were complicit in this victimisation (see Australian Public Servants Subjected to Soviet-Style Abuse).
The humiliation, provocation and cruelty that some APS hired-gun psychiatrists have subjected APS employees to defy belief – ranging from unjustified antagonism and aggression directed at employees to verballing employees to make ‘confessions’ that they are adulterous and suicidal. APS employees have been left tainted with dubious and career-damaging psychiatric diagnoses, based on questionable evidence or no evidence at all. Needless to say, these employees are left highly traumatised.
The use and abuse of compulsory psychiatric referrals has been around for decades in the Australian employment landscape, being first brought to prominence during the early 1990s by Whistleblowers Australia. Yet, unfortunately, the situation is still very much the same (if not worse), and Australian politicians, human rights groups and the mainstream media’s interest has been noticeably lacking.
APS Dignity has been directly and indirectly in touch with many victims of compulsory psychiatric referrals and has been researching the legalities of the referrals, with the ultimate goal of helping victims to launch a class action against the Commonwealth of Australia.
There are various laws and codes that APS agencies may be breaching in directing or supporting (whether explicitly or implicitly) compulsory psychiatric referrals, as listed below.
- Regulations 29 to 31 of the Health Insurance Regulations 1975 specifically state that a valid referral to a specialist, such as a psychiatrist, must come from a referring practitioner (usually the treating general practitioner). There are no exceptions made to operate outside the scope of the Health Insurance Regulations 1975 when it comes to referrals to specialists.
- Clause 6 of the Institute of Australasian Psychiatrists’ Code of Ethics states that ‘it is unethical for a psychiatrist chosen by an employer to examine an employee who has been forced to attend’. APS agencies are effectively forcing employees to attend examinations under the threats of discipline or financial penalty.
- Section 10(1)(d) of the Public Service Act 1999 states that the APS ‘has the highest ethical standards’. Given that the Institute of Australasian Psychiatrists’ Code of Ethics makes it apparent that compulsory psychiatric referrals are unethical, then such referrals are inconsistent with the APS Values, which may be a breach of employment contract, and a breach of the specific torts of statutory duty and public misfeasance.
- Section 16 of the Public Service Act 1999 states that whistleblowers reporting potential breaches of the APS Code of Conduct must not be victimised or discriminated against. Where compulsory psychiatric referrals are used as a victimisation or discrimination tool (which will usually be the case), then this may be a breach of employment contract, and a breach of the specific torts of statutory duty and public misfeasance.
- Under defamation law, it is unlawful to communicate ‘material’, whether directly or by imputation, anything which has the effect or tendency of damaging the reputation of another by: exposing that person to ridicule; lowering that person’s reputation in the eyes of members of the community; causing people to shun or avoid that person; or injure that person’s professional reputation. Given that a psychiatric referral carries the imputation that an APS employee is mentally unstable, then unlawful defamation may have occurred.
- Section 340 of the Fair Work Act 2009 states that adverse action must not be taken against an employee who has exercised, or proposed to exercise, a workplace right. Thus, where a compulsory psychiatric referral is used as a victimisation or discrimination tool against a whistleblower, this may amount to an unlawful adverse action.
- Under section 15 of the Disability Discrimination Act 1992, it is unlawful to impute a mental disability on an employee. Given that a psychiatric referral carries the imputation that an APS employee is mentally unstable, then unlawful disability discrimination may have occurred.
- When a compulsory psychiatric referral is used as a victimisation or discrimination tool which results in the employee suffering psychologically and emotionally, then this may be a breach of the specific torts of duty of care to provide a safe system of work and intentional infliction of mental harm and emotional distress.
- Under section 5 of the Administrative Decisions (Judicial Review) Act 1977, it is unlawful to exercise a discretionary statutory power in bad faith or unreasonably, or in a way that constitutes an abuse of power. When a compulsory psychiatric referral is used as a victimisation or discrimination tool, then there may be a breach of these administrative principles.
- Under Information Privacy Principles 7 and 8 of the Privacy Act 1988, APS agencies have an obligation to ensure employees’ recorded personal information is accurate, complete and not misleading. Under Information Privacy Principle 11 of the Privacy Act 1988, APS agencies must seek consent before disclosing employees’ personal information to a third party. Where an APS agency’s briefing to a psychiatrist about an employee contains inaccurate, incomplete or misleading information, and an employee’s personal information is disclosed without their consent, this may be a breach of the Privacy Act 1988.
- Under Information Privacy Principles 1 to 3 of the Privacy Act 1988, APS agencies must not collect personal information unlawfully and unfairly, and must not intrude unreasonably on a person’s personal affairs. The Privacy Commissioner has issued guidelines stating that Information Privacy Principles 1 to 3 may also be breached where personal information is collected by: asking a person many times for details; interviewers insulting or intimidating people; or asking for information in ways that might unnecessarily embarrass a person. Where a psychiatrist that is contracted by an APS agency asks unnecessary intrusive questions of an employee and collects personal information of an employee in an unfair way, this may be a breach of the Privacy Act 1988 and the specific tort of invasion of privacy.
- Where an APS agency directs employees to stay away from work (at the employees’ own expense) until they attend a psychiatric examination, this may be a breach of the evolving common law right of an employee to perform work (see, for example, the case of Quinn v Overland  FCA 799).
The position of the APS on this issue, as conveyed by a senior APS lawyer in a recent ‘off the record’ conversation noted below, paints a disturbing picture of the mentality of APS bureaucrats who perpetrate these abuses.
- Compulsory psychiatric referrals are likely to be unlawful, unethical and abusive, but this does not matter as they can be masked under the guise of ‘care’ and ‘concern’. This is all part of ‘playing the game’ and whistleblowers should learn to join in with ‘playing the game’.
- It does not matter how unreasonable compulsory psychiatric referrals are because the APS is ‘big’ and ‘unmoveable’, and even if the matters were taken to court, the APS can hire barristers to ‘butcher’ employee litigants in the witness box.
- Whistleblowers must bear the burden of ‘proving their sanity’ (which means criminals are granted stronger rights than APS whistleblowers, as the former group enjoys the presumption of innocence until proven guilty and, if they choose to claim insanity, it is not imposed on them).
- All APS employees who have had compulsory psychiatric referrals are ‘losers’ and deserve what they get.
An enlightening comment posted on the APS Dignity blog – and which sounds all too familiar even for us ordinary injured sods under workcover- states the following:
The Hired Gun psychiatrist – based on one person’s experience of group bullying (mobbing) in the APS
In Australia, psychiatrists enter into an APS workplace as hired guns, with their implied or verbal brief often being to further abuse an already bullied staff member or to medicalise an existing industrial dispute, so that one side of the dispute can be labelled with a medical condition.
This enables those APS bullies, who prefer a negative leadership style, and those others, who are unable to manage and/or resolve issues constructively, for whatever reason, to arrange and participate in the bullying of their work colleague – under the guise of “reasonable administrative action”, “duty of care”.
Their work colleague is usually hard-working, enthusiastic, knowledgeable, conscientious individual, who gets a sense of satisfaction in doing a good job and adding value.
APS staff who participate in group bullying (mobbing, scapegoating) are usually reliant on their being able to work against their colleague behind the scenes and to rally others to their cause – via email, for instance, usually having some kind of semi-legitimate sounding reason for involving others in these types of communications.
Secrecy is important to them. They use emotion-laden, defamatory language when discussing their colleague, and spread rumour, unsubstantiated allegations and hearsay, in order to undermine their colleague and portray their colleague to others as having no redeeming qualities. They even downgrade and devalue their colleague’s achievements, skills and abilities.
Not only participating in it, but also exposure to it, helps institutionalise these ways of behaving as being the norm. Bullying helps spread fear and anxiety throughout the agency. Mobbing (group bullying), is sometimes described as a cancer that spreads like a virus through the workplace.
So their colleague becomes “the problem”, not the bullies. They deny that they’re the problem i.e. they externalise the problem: It’s nothing to do with them. Others believe them because they want to believe them. It’s too hard to make a stand as they may be next on the bullies’ hit list and it’s much easier on their conscience to think that their colleague is deserving of this treatment.
Escalating bullying over a period will eventually cause their colleague to become ill.
What are exclusionary factors? Some exclusions apply in relation to Comcare e.g. if a person is significantly distressed due to workplace factors and simultaneously performance management action is being undertaken, then the employer will likely argue that the performance management action is reasonable and the target is distressed due to it. This will be a major obstacle for her getting Comcare, as she will first need to prove that the performance management action is not reasonable administrative action. And this will involve huge additional costs to her in terms of her health, wellbeing and finances, often at a time when her cognitive functioning is seriously compromised due to anxiety and depression resulting from the bullying.
The bullies may focus on something minor about her work performance and on this basis initiate performance management action, even though this treatment of her is unreasonable and unfair and is markedly different (i.e. much less favourable) from that they would show towards their other colleagues. Comcare will then disallow her claim, and she will need to seek a review, and then most likely go to AAT (the tribunal). So she may be forced into a situation where she needs to take a package or resign due to poor health and finances.
The mob mentality in this type of situation is all-pervasive, as a kind of mob hysteria often takes over the bullies’ way of thinking and acting. They are in this together. Procedural fairness, integrity and conscience are given short shrift, as the bullies prefer to take matters into their own hands.
Their colleague may even be unaware that performance management action has been initiated and only discover this later, when she seeks Comcare or obtains her personnel records.
So the first exclusionary clause and obstacle to their colleague’s health and financial recovery is in place.
By this time HR has become involved.
Their colleague’s resilience and “audacity” in trying to remain at work, or return to work after a break due to illness, would be likely to prompt the bullies to up their game. They would do this with the help of HR.
Enter the hired gun psychiatrist.
This is the bullies’ trump card. The bullies hope the hired gun will find the prospect of abusing and destroying their colleague an appealing one, at upwards of $2,500 at each opportunity to do so. Other incentives too: the chance to drum up more business, plus a bit of a trip away thrown into the bargain.
The hired gun psychiatrist is useful to workplace bullies, on a number of fronts. A true hired gun will help legitimise the bullying as well as help vindicate the bullies’ actions (those who have any conscience or self-awareness), and will shift “the blame”.
These psychiatrist hired guns basically have no accountability for their behaviours or for what they write in their assessments i.e. they can make false assertions, not record and relay accurately what the bullying victim has communicated to them, not follow their profession’s ethical guidelines, not follow relevant expert witness codes of conduct; and yet, escape accountability for any of these untoward behaviours.
The worst apparently that can happen to them is that a judge may discount their evidence, for example, and not take it into consideration.
The official port of call to lodge a complaint about a medical practitioner varies from state to territory. But whether or not any of these bodies can do, or have the resolve to do, anything to curb the activities of these legitimised bullies is doubtful. AAT evidence suggests that one particular agency’s preferred hired gun psychiatrist has been at it for years.
One of the hired gun psychiatrist’s main uses is their enabling APS bullies to work around the APS Code of Conduct i.e. psychiatrists can actually take over the mantle of bullying of their colleague. And this is what many of them would appear to be proficient in, and also enjoy doing.
The psychiatrist’s report is often abusive in itself, evidencing that neither the psychiatrist nor the employer has any respect for the bullied colleague’s dignity and humanity. His report may also fail to contain any reasonable medical argument, and the psychiatrist may make claims that he is unable to substantiate and may even state the bullying is all in the person’s mind and is due to her having a “personality disorder” (not the bullies).
Some hired guns favour the diagnose of personality disorder, especially in cases where the bullied colleague is so distressed and ill that she is unable to defend herself against hearsay, unsubstantiated and/or unreasonable allegations that are communicated from the bullies to HR and then on to the hired gun.
If the hired gun’s evidence is that their bullied colleague suffers from a “personality disorder”, and the GP’s is something else, then this would usually mean that Comcare would disallow her claim for a psychological injury, initially. The onus would then be on her to provide further evidence of the psychological injury and/or prove that her response to actions/workplace events would be within the bounds of normal behaviour by a reasonable person (one without a personality disorder) when faced with similar circumstances. This will drag out the Comcare process and expose her to further illness. She also may need to “play the game” by engaging her own psychiatrist – which is costly as she may even be on unpaid leave. And of course many people don’t like psychiatry per se. And who could blame them after their hired guns experience.
The hired gun’s diagnosis of personality disorder, when received by HR, may be passed on to the bullies in her workplace – in breach not only of the agency’s policy but also potentially in breach of the Privacy Act. She may already be so injured by the bullying that she doesn’t feel that lodging a complaint would be a possible option. A reasonable person would most likely perceive HR’s actions to be bullying.
Administrative processes are geared against her to ensure that she remains isolated and sick. She may by now completely broken and unable to return to work, with or without compensation.
Another HR technique may be to phone the psychiatrist and tell the psychiatrist that his report is not clear enough. A hired gun has been known to amend his report materially, on the basis of this type of discussion (prompting?) by HR. This would be a breach of the expert witness code of conduct in relation to the provision by an expert of a medico-legal report.
But what would have happened in the event the psychiatrist is sympathetic to the plight of the bullied staff member?
What would happen if a psychiatrist strongly suspects what is occurring and is not devoid of moral conviction and chooses not to participate in the workplace mobbing?
In all likelihood the ethical psychiatrist would be pushed e.g. HR and the bullies would make up a story something along the lines that his reporting and recommendations are never clear enough, and this information would be fed back to the company for whom he contracts. This would be one way to get rid of reasonable psychiatrists and ensure that the ones who remain on the circuit are hired guns. The same HR actions would apply to ethical rehabilitation providers as well.
In the interim, the ethical psychiatrist who has seen the bullied employee, for less than one hour, may be hounded by HR and bombarded with questions, which require him to write supplementary report after supplementary report. It is most likely hoped that the ethical psychiatrist will eventually just cave in or slip up as a result of this and give a “right” answer i.e. something that could be used against their targeted colleague by the bullies. In their phrasing of a particular question, HR may prompt the ethical psychiatrist to answer a question in a particular way.
Bombarding a psychiatrist with more questions is also a means to delay their bullied colleague’s return to work or send her back to the unsafe workplace, in particular i.e. where her GP is recommending a transfer to a safe working environment.
So, after unreasonable delays where, contrary to best practices in relation to rehabilitation, she may be kept out of the workplace, with only token efforts made to return her to a safe working environment, time rolls around and once again the bullies decide to flex their muscle by coercing her yet again to be assessed by a psychiatrist.
By this time they go directly to the psychiatrist who they can rely on to give their preferred diagnosis. Enter the hired gun psychiatrist, the one with the reputation for giving diagnoses which are at odds with other medical experts – and presumably the one with the pre-arranged diagnosis of personality disorder.
I too would never have believed it, until it happened to me.
Read more on the APS Dignity Blog including Calls for Expressions of Interest for Class Action against Comcare which can also be views on the impressive APS (apsbullying.com) website
Thank you to APS Dignity for allowing us to publish and share your fabulous article.
We just created a petition: The NSW State Government: Scrap the recent WorkCover changes in NSW and start again , because we care deeply about this very important issue.
We are trying to collect signatures, and we could really use your help.
To read more about what I’m trying to do and to sign my petition, click here:
It’ll just take a minute!
Once you’re done, please ask your friends to sign the petition as well. Grassroots movements succeed because people like you are willing to spread the word!
Petitioned The NSW State Government
The NSW State Government: Scrap the recent WorkCover changes in NSW and start again
What is outrageous about the O’Farrell Government’s attack on injured workers entitlements is that they’ve failed to look at the facts. It is injured workers and the community who already bear an overwhelming majority of the costs associated with their injuries or illnesses. Injured workers much more so. Employers (and no doubt insurers), on the other hand continue to get an increasingly free-ride.
Poor injury management ends up being paid for by taxpayers as more and more injured workers fail to make successful transitions back into the workforce. Employers routinely view many people who have been unfortunate enough to be on workers compensation as liabilities best avoided, which limits the potential injured workers (especially with long term injuries and psychological injuries) from ever returning to pre-injury employment status and earning capacity. Many long-term injured workers end up being forced onto unemployment benefits at taxpayer’s expense. Employers have limited liability and therefore little incentive to take the health, safety and wellbeing on injured workers seriously.
Cost of work-related injury and disease: 2008-2009
According to the 2012 Safe Work Australia report the estimated distributed costs of workplace related injury and illness in Australia are:
- employers bear 5 per cent of the total cost – this includes loss of productivity from absent workers, recruitment and retraining costs and fines and penalties from breaches of work health and safety regulations,
- injured workers bear 74 per cent of the costs – costs include loss of current and future income and non-compensated medical expenses, and
- the community bears 21 per cent of the total cost – this includes social welfare payments, medical and health scheme costs and loss of potential output and revenue.
An extensive survey carried out before the recent changes to WorkCover in NSW highlighted the following:
- For people on workers’ compensation, coping with injury or illness is often the least of their worries. Dealing with uncaring and hostile employers and/or insurers is a far greater cause of stress to people on workers’ compensation than their injuries and/or illnesses.
- Of those surveyed, 42% nominated dealing with their employer/insurer as the biggest cause of stress. A further 20% said dealing with the workers’ compensation system was the major stress factor. Only 16% named their injury or illness as the most stressful factor.
- An alarming 59% of survey respondents reported having contemplated suicide following their injury.
The system has now become even more hostile toward injured workers. Ideally the O’Farrell Government are hoping that these new laws will be very effective in coercing anyone with an injury onto social security and Medicare whilst employers will enjoy contained premiums, insurers will experience great profits and the state government will be overseeing a system that no longer concerns itself with workplace related injuries. And one day the entire system can be closed off.