What is WorkCover?
WorkCover WA regulates West Australia's workers' compensation and injury management scheme. WorkCover's mission is ensure that work related injuries are effectively and efficiently managed so that injured workers are able to make a safe and sustainable return to work. The West Australian workers' compensation system is the largest privately underwritten scheme in Australia and involves insurance being provided by the Insurance Commission of Western Australia, 8 commercial insurers and 24 self-insuring entities.
WorkCover is funded by a levy on the workers’ compensation insurance premiums paid by West Australian employers and levies on approved self-insured employers.
WorkCover plays a number of key roles for the West Australian government. Here, for example WorkCover provides the government with strategic policy direction regarding work injury matters and workers' compensation. It also ensures that employers and service providers comply with the Workers' Compensation and Injury Management Act 1981 (“the Act”). Another important role that WorkCover plays is to provide a independent dispute resolution service for workers, their employers and the employer’s insurer. In the 2017 / 2018 financial year WorkCover was involved in coordinating and convening 2,035 conciliation conferences and 578 arbitrations in regards to disputes between workers' compensation claimants and insurers.
What is a conciliation conference?
WorkCover operates the Workers’ Compensation Conciliation Service. This service aims to resolve workers' compensation disputes by bringing the relevant parties together and attempting to broker an agreement. It is generally accepted that conciliation conferences can be a fair, practical and cost effective process through which disputes can be resolved. It was originally envisioned that conciliation conferences convened by WorkCover would provide a less formal and less bureaucratic process through which injured workers, employers and their insurers could resolve disputes.
Despite the best intentions of WorkCover to make conciliation conferences relatively informal and easier for injured workers to participate in, the reality is quite different. Here, the injured worker should be aware that in the majority of cases the insurer will be represented by a defendant lawyer. In these cases, the defendant lawyer’s role is to protect the interests of the insurer and to use any legal methods available to minimise the amount of treatment and compensation that is provided to the injured worker. Injured workers who attend a conciliation without support often find themselves quickly out of depth and in need of the services of a specialist plaintiff injury lawyer.
Unfortunately, it is sometimes at this late stage that the injured worker realises, for the first time, that they are involved in an adversarial legal process. In an adversarial environment the injured worker must fight for the regular payments, treatment and lump sum compensation they are legally entitled to, otherwise they will only receive what the insurer is prepared to offer them.
Fortunately, both parties involved in a WorkCover dispute are entitled to legal representation and the injured worker is able to appoint a plaintiff injury lawyer to negotiate on their behalf. Where liability has been admitted in a workers’ compensation claim the insurer must pay for the majority of the injured worker’s legal expenses.
Disagreements that can be resolved through a WorkCover conciliation conference include disputes regarding whether:
- the insurer is required to make a lump sum compensation payment to settle the workers’ compensation claim;
- regular compensation benefits should be paid to the injured worker or continue to be paid;
- particular medical diagnosis or treatment be provided or medical expenses be paid for; or
- the injured worker is required to participate in an approved return to work program.
A very common reason for a conciliation conference to be organised involves a situation where an injured employee has made a workers’ compensation claim but the claim has not been admitted by the insurer. Here, the injured worker often faces a very precarious financial situation as they may have used up all of their employee entitlements and are no longer being paid by the employer. In these circumstances a plaintiff injury lawyer can lodge an Application for Conciliation in an effort to obtain a 12 week interim order. These orders provide injured workers with regular compensation benefits for a 12 week period while the issue of liability in the workers’ compensation claim is determined.
Another common scenario where conciliation conferences occur is where the insurer makes an Application for Conciliation in order to obtain an order to suspend the employee’s workers’ compensation benefits for a period of 12 weeks.
A conciliation officer is appointed by WorkCover to oversee and manage the conciliation conference. Conciliation officers do not take sides in the dispute and are required to be strictly impartial and independent. The conciliation officer can use a range of dispute resolution techniques to help each side better understand the other side’s position and to encourage each party to resolve the dispute.
Each party in a WorkCover conciliation conference has an opportunity to present the position they have taken in the dispute and to support this position with evidence and other relevant information. Conciliation conferences can be held very informally and quickly over the phone, however, it is more common for them to be held at a private conference room at WorkCover WA.
The majority of workers’ compensation disputes are resolved at conciliation conferences. Here, for example, in the 2017/2018 year only 29% of conciliation conferences failed to resolve the dispute in question and resulted in a subsequent arbitration. WorkCover generally takes a pragmatic position and encourages both parties to resolve the dispute at any stage of the negotiations and without necessarily involving the Conciliation Service.
Conciliation conferences are held in private sessions and can only be attended by parties involved in the dispute, their legal representatives, WorkCover personnel or other individuals approved by WorkCover. Any information regarding the outcome of a conciliation conference or directions made by the conciliation officer are kept confidential and are only provided to the parties involved in the dispute.
How is a conciliation conference organised?In order to start the conciliation process an Application for Conciliation must be lodged with WorkCover. The Application for Conciliation or Form 100 can be lodged in person, by fax, by post, by email and online. If the injured worker is legally represented their plaintiff injury lawyer should complete and lodge the application and coordinate all further actions required for successful participation in the conciliation conference.
Interestingly, in August 2019, as part of its Digital First Strategy, WorkCover completed the implementation of an online conciliation registry service. This new service allows the online lodgement of Applications for Conciliation, the exchange of documents, conciliation conference scheduling and the provision of various notifications.
If the injured worker or their personal injury lawyer lodges an Application for Conciliation, the injured worker is subsequently referred to as the ‘applicant’ and the other side is referred to as the ‘respondent’ throughout the conciliation process. Conversely, if the employer, insurer or their legal representatives lodges an Application for Conciliation they are referred to as the ‘applicant’ and the injured worker is referred to as the ‘respondent’.
Once an Application for Conciliation is lodged it is checked to confirm whether:
- an attempt has been made to resolve the dispute through a process of informal negotiation between the parties;
- the terms of the Act and the Workers’ Compensation and Injury Management Conciliation Rules 2011 (“the Rules”) have been complied with; and
- all of the required information has been lodged.
What does a conciliation officer do?
Conciliation officers are senior employees of WorkCover and play a pivotal role in the conciliation process. Conciliation officers are commonly senior civil servants with an extensive working knowledge of the West Australian workers’ compensation legislation and its rules. The key role of a conciliation officer is to assist the parties in dispute to reach an acceptable agreement as efficiently and cost effectively as possible.
Here, Section 182I(1) of the Act notes the duties of conciliation officers are “to make all reasonable efforts to bring the parties to the dispute to an agreement acceptable to all of them”. Section 182I(2) of the Act explains that a conciliation officer is to act:
a) fairly, economically, informally and quickly; and
b) according to the substantial merits of the case without regard to the technicalities and legal forms.
With training and experience in dispute and conflict resolution techniques, conciliation officers are required at all times to focus on resolving the dispute and to act in an impartial and unbiased manner.
Conciliation officers are required to carefully define the precise elements upon which the dispute is based and to clearly communicate any facts that have been agreed by the parties. Guided by the terms of the Act and the Rules, conciliation officers are empowered to identify and highlight particular risks involved in a specific course of action a party may consider making. Often this process can involve the conciliation officer drawing upon their experience and knowledge of the Conciliation Service to explain possible best case versus worst case scenarios. If it appears that an agreement may not be reached the conciliation officer can explain what they think would occur if the dispute was heard by an arbitrator. While these opinions or pieces of advice are not legally binding they can help each party to understand the potential risks, delays and costs that may be incurred if an agreement is not reached.
Conciliation officers do, however, have limited statutory authority to make binding decisions regarding the payment, suspension or reduction of workers’ compensation entitlements.
Further to this, Section 182J of the Act specifies the powers of conciliation officers and notes that they may:
b) require a party to the dispute to attend at a conciliation conference at which the conciliation officer and any other party to the dispute is present;
c) require a party to the dispute, or the representative of a party, to answer questions put by the conciliation officer;
d) require a party to the dispute, or the representative of a party, to produce documents to the conciliation officer or consent to another person who has relevant documents producing them to the conciliation officer.
How is a conciliation conference concluded and what happens then?
Put simply, the conciliation ends when:
a) an agreement is reached on all disputed matters; or
b) the conciliation officer believes that there is minimal chance that an agreement will be reached; or
c) the time limit for conciliation, being a total of 56 days, has expired.
At the conclusion of a conciliation the conciliation officer issues a certificate of outcome which notes any particular outcomes in the conciliation and explains the terms of any directions that the conciliation officer may have made in regards to the payment or suspension of workers’ compensation benefits.
What happens if a dispute is not settled at a conciliation conference?
If a dispute is not settled at a conciliation conference it is possible to lodge an application to have the dispute heard at an arbitration convened by WorkCover. An application for arbitration must be made within 28 days from the receipt of the certification of outcome issued in regards to the conciliation.
Unlike the conciliation process the primary role of the Arbitration Service is to make legally binding decisions regarding workers’ compensation disputes.
Contemporary academic research on the conciliation process.
Within the West Australian workers’ compensation system, conciliation conferences are a relatively common vehicle through which to resolve a dispute. Here, for example, in the 2018/2019 year WorkCover completed 2,079 conciliation conferences. Despite this, there is a surprising lack of academic research into conciliation conferences generally. In 2008, Guthrie and Barns provided some useful research into structural changes in the West Australian workers’ compensation system. This research focused on the impacts of various legislative changes over time and how these revisions influenced the experience of injured workers. Guthrie and Barns go to some effort to highlight the effectiveness of an informal conciliation process but warn that given the complexity of the system involved that workers should be able to continue to engage legal representation.
How can Separovic Injury Lawyers assist you in successfully negotiating a conciliation conference?
Over the years Separovic Injury Lawyers have successfully negotiated workers’ compensation disputes in hundreds of conciliation conferences. We have developed and honed a range of techniques and strategies to ensure that the most favourable outcomes are obtained for our clients through the conciliation process. If you have any concerns or queries regarding the conciliation process and how it may impact your claim we would be happy to meet with you and clearly explain how we could assist you.