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Workers' Compensation (Dust Diseases) Amendment Bill 2022

Published on: September 2022

Record: HANSARD-1323879322-127192

Workers' Compensation (Dust Diseases) Amendment Bill 2022

Second Reading Debate

Debate resumed from 10 August 2022.

Ms SOPHIE COTSIS (Canterbury) (18:56:08):

I lead on behalf of the Opposition in debate on the Workers' Compensation (Dust Diseases) Amendment Bill 2022. I welcome the chance to speak about dust diseases today and note that this bill will ensure that the rectifications icare have undertaken to deal with historical mis‑payments are supported by legislation; enable the continuation of current payment practices; and amend legislation to simplify benefit calculations.

Before I continue, I acknowledge that some people have been working very hard to get to this point. I thank the shadow Treasurer, the Hon. Daniel Mookhey, from the other place. I thank my colleagues the Hon. Gregory Donnelly, the Hon. Anthony D'Adam, the Hon. Mark Buttigieg and the Hon. Adam Searle, who have been working very hard on the Standing Committee on Law and Justice and who over the past three to four years have put in a huge effort regarding dust diseases. I acknowledge my staffer, Bron Hanna, and Bill Hawker from the leader's office, as well as a number of people from organisations and experts I will mention in this speech. I thank everybody who put forward submissions to the committee over the past four years. I acknowledge Mark Morey, the secretary of Unions NSW, and Natasha Flores, who have a workplace safety committee that meets on a monthly basis and talks about a number of issues. It also has a relationship with the State Insurance Regulatory Authority and icare. At the end of the day, this bill is about making sure that people who go to work come back home safely and that our workplace laws are strong and effective and that people do not die from going to work.

In a 2019 review icare identified issues regarding the interpretation of the Dust Diseases Care benefit scheme. I note with concern that it appears that icare realised this much earlier, and I will give members the reasons for that. The review examined the interpretation of the Dust Diseases Care benefit entitlements provided for under the 1942 Act and the 1987 Act and the calculations used by icare to determine compensation benefits. According to the August 2021 Deloitte assessment of the Dust Diseases Care award remediation program, icare identified three issues:

1.Underpayment of participants due to an incorrect rate being used for the first 26 weeks.

2.Overpayment of participants due to an incorrect rate being used.

3.Overpayment of participants due to dependent allowances being granted in error.

In 2021 icare commenced the Dust Diseases Care award remediation program to remediate underpaid participants. It would appear that more than 1,100 New South Wales workers who have died or are suffering from deadly dust diseases such as mesothelioma and silicosis have missed out on almost $15 million in compensation because of decades-old payment errors. About 830 workers have already died without correct compensation, and at least 300 workers who are alive have been underpaid almost $4 million since 2014.

Given the track record of icare, I am glad that overpayments will not be recovered. That does not come because of the generosity of icare or the bureaucracy; that is because of the hard negotiation and good will from those who have suffered for many years. I acknowledge the Minister and accept that overpayments will not be recovered, which is a good thing. Icare has stated that it identified about 1,400 files that may have been miscalculated, including 800 deceased estates. PwC has overseen the remediation of underpaid compensation. The Minister's office stated that icare has contacted impacted participants and estates to make arrangements for remediation payments to be made. Payments were by lump sum, and 35 estates have been unable to be reached so far.

The bill removes references to coalminers in the 1942 Act to clarify that coalmining provisions do not apply to workers with dust diseases. The bill amends rates of compensation to injured workers to align with the 1987 Act, rather than with the lower rates under the Workers' Compensation Act 1926, and it ensures that workers are paid a statutory rate 20 per cent higher than currently entitled. The bill amends provisions so that, regardless of the date of the injury occurring, calculation of benefits for injured workers are consistent and in line with the rates within the general workers compensation scheme. The bill amends provisions to ensure that partially disabled workers who are retired or unfit for suitable duties as a result of their dust diseases are entitled under legislation to payments for dependants. The bill amends the 1987 Act so that current weekly wage rates can be calculated according to Australian Bureau of Statistics average earnings.

Expanding schedule 1 of the Dust Diseases Act is a positive but long-awaited development that arose after a loud campaign by the Labor Party, victims, injured workers, unions and endless letters. The Minister for Employee Relations has stated that I can be a pain in the neck. I continuously have been tagging him and writing to him and other Ministers about expanding the schedule of dust diseases. I note that this bill was introduced alongside the Workers' Compensation (Dust Diseases) Amendment (Scheduled Diseases) Regulation 2022, in which the list of diseases in schedule 1 was expanded to include diffuse dust-related pulmonary fibrosis, hypersensitivity pneumonitis, any form of pneumoconiosis, silica-induced carcinoma of the lung, and systemic sclerosis.

This was first recommended four years ago—recommendation 6 of the Standing Committee on Law and Justice in its 2018 review of the Dust Diseases scheme. The review noted that the Dust Diseases Act was archaic and had not been updated to take into account modern medical understanding of dust diseases. The review called for the deemed diseases in schedule 1 to the Act to be updated to include diseases that are now known to be linked to silica and other dust exposures in the workplace and that are not listed in the Act. At the time of the review, Associate Professor Deborah Yates testified:

In the last 25 years there have been a lot of changes with regard to respiratory medicine, particularly with understanding basic disease pathophysiology. That has included occupational lung disease, and the spectrum of occupational lung disease has vastly widened.

The Government commissioned Professor Tim Driscoll to complete a review into schedule 1. It has taken too long. The Thoracic Society provided feedback on the draft evidence review report, the Driscoll report, which was also peer-reviewed by Dr Ryan Hoy in May 2021. The report was only finalised in September 2021. Taylor Fry was also commissioned to conduct an independent actuarial study, which was only finalised in October 2021. I put on the record that this happened years after it should have. The Government should have taken action a lot quicker and should not have allowed what has happened over the past four years. In total there have been four reports.

The Standing Committee on Law and Justice inquiry, which includes Government members, asked questions of victims who have since died. The inquiry should have happened a long time ago. It only happened at all because of the agitation of the parliamentary caucus of the New South Wales Labor Party, alongside community leaders, victims, injured workers, health experts, the legal profession and a number of unions, such as the Australian Workers' Union, the Australian Manufacturing Workers' Union, and the Construction, Forestry, Maritime, Mining and Energy Union. A large number of workers from those unions work in affected areas, such as quarrying, mining, construction and tunnelling. But it is not just direct workers who are affected. If members bother to look at the Australian Workers' Union website, they will see that it is running a campaign at the moment that highlights case study after case study, as well as stories of people who have dust diseases who have never come across dust diseases but work in an office above a quarry. The Australian Workers' Union and the other affected unions are running campaigns. This issue should be apolitical. Members of everybody's community are affected by dust diseases, totalling about 600,000 people Australia-wide.

This Government needs to strengthen laws around dust diseases. What the Government has done so far does not go far enough. Autoimmune diseases linked to silicosis have not been included in the bill, making it harder for sufferers to get workers compensation. A broader definition of dust diseases would stop sufferers of silicosis having to jump through hoops and allow them to access the compensation they need to deal with such an insidious disease. I now turn to the Government's terrible record on silicosis. Silicosis is a deadly lung condition. It is an occupational disease traditionally associated with stonemasons and miners. As one labour historian noted:

The damage is not caused by dust clogging the lungs. Rather, in trying to expel the particles, the air sacs are scarred, which stops the lungs from stretching as much as they need to do to take in enough breath. Victims smother from the inside.

The disease was common in the 1940s, 1950s and 1960 primarily in workers engaged in public works projects tunnelling in Sydney's sandstone. Those workers could get a decent wage but the labour historian dubbed them "the wages of death". In 1908 a Sydney contractor acknowledged that within two years of working on these projects, strapping workers pine away to almost nothing.

The work of union representatives and Labor governments, including Chifley's new postwar regulatory body the New South Wales Joint Coal Board, led to safer work practices and support for sufferers of dust diseases. Preventative measures were introduced into workplaces, including using PPE, stopping dry cutting and using water to keep the dust down. Cases drastically reduced and New South Wales finally passed the Workers' Compensation (Dust Diseases) Act in 1942. Effective regulation and work health and safety legislation then meant that silicosis virtually disappeared.

Silicosis is preventable, but ineffective legislation has seen it re-emerge. I make it terribly clear that the rise of silicosis for workers from the manufactured stone industry, where Caesarstone and similar products have become popular for bathroom and kitchen renovations, but also in tunnelling and quarrying is a failure of regulation. As I mentioned earlier, everybody should go to the Australian Workers' Union Facebook page and look at the campaign that it is running. The impact of silicosis on the people who it affects is severe. Medical professionals, work health and safety experts, and legal experts who testified to the 2021 Review of the Dust Diseases scheme, which looked at its re-emergence in the manufactured stone industry, said that in almost all reported cases of silicosis there was little adherence to basic protection measures, such as provision of appropriate ventilation systems and the use of personal protective equipment. Multiple experts contended, and continue to contend, even if SafeWork will not acknowledge it, that dry cutting is widespread in New South Wales in installation settings where workers install benchtops. Over and over again medical professionals have called for the need for vigorous enforcement of dust reduction regulations, particularly in the growing industry of engineered stone products.

The recent report into the 2021 review of the Dust Diseases scheme, published in June, is a shocking and damning indictment of a Government that is asleep at the wheel after 12 years. The report was very strong, especially given that it came from the Government-dominated upper House Standing Committee on Law and Justice. However, I note that it does have a number of crossbench members. During the inquiry some very good questions were asked by upper House Government members. I acknowledge all the members of that committee for their forensic and detailed work and for their consideration. I listened to a number of witnesses, particularly two 40‑year-old young male stonemasons who gave evidence last year. They have families but they cannot breathe. They have no life. That is what we are facing. The majority of people who contract dust diseases are young men but they are living a terrible life. Those who have families are living a destitute life. This bill should improve and strengthen regulations and laws in New South Wales.

As I mentioned, at the latest hearings work health and safety experts, lawyers, respiratory specialists, workplace representatives and workplace delegates told us about the terrible lack of action. It is not about blaming the Government; it is about putting forward some really important low-hanging fruit and making amendments to a number of regulations. If Government members were bothered they could read the report of the business community, which now knows that this is costing them. Something bipartisan should be done about this, but the Government's response to the inquiry's report was very weak. The committee's report states:

… we remain concerned that the sense of urgency and importance with which we would expect to see around these issues is not evident in New South Wales. In our view, New South Wales continues to lag behind other states in its response.

It also states:

… we cannot help but question whether the government's response to the issues we have raised in the past and our previous recommendations appreciate the seriousness of the issue at hand.

It concludes:

… there is clearly more work to be done in this area, and we hope it happens soon, so that other lives are not taken prematurely and the social, economic and human costs associated with silicosis are avoided.

The Government's response to the 2021 Review of the Dust Diseases scheme is incredibly disappointing and continues the Government's wilful ignorance of the depth of the problem of rising numbers of silicosis cases across industries such as manufactured stone, quarrying and tunnelling. We saw it again at budget estimates with SafeWork's bizarre claims, in the face of completely opposing expert evidence, that the dry cutting ban is being enforced and that it knows where all the manufactured stone workers are. The overarching message from the Government's response is that it is arguing that current measures are making a difference. Again, that is in direct contrast to the expert evidence that was given to the inquiry by medical experts, academics, work health and safety experts, and union representatives who deal with local health representatives at the workplace. This is not anecdotal. This is real, methodical and statistical. This is important work by important experts. Do not believe me, believe the experts.

The Government is not acting on key recommendations, which would effectively halt the increase of silicosis and move on areas where there is clearly not effective enforcement of regulations. There is a lack of screening in New South Wales. It will shock everyone in this place that, unlike other States, which have far better screening regimes than New South Wales, we do not know how many workers in New South Wales have silicosis. That means hundreds of workers in our State have silicosis that we do not know about. The Standing Committee on Law and Justice 2021 Review of the Dust Diseases Scheme report concluded:

Overall, however, we are concerned that New South Wales is lagging behind other states in ensuring all workers exposed to silica identified and screened using methods sensitive enough to detect silicosis, particularly for workers in the manufactured stone industry. This leads to a concern that we do not yet have a full picture of the emergence of silicosis in this state.

A number of stakeholders who made submissions to this inquiry and the previous one suggested that New South Wales is not taking a proactive enough approach to identifying cases of silicosis in the manufactured stone industry and that a more proactive and effective screening program, such as that in Queensland, would result in more silicosis diagnoses. You cannot fix a problem if you do not know how bad it is. There are three reasons why our screening is inadequate. Firstly, the 2019 review recommended a comprehensive case-finding study for silicosis in the manufactured stone industry. SafeWork NSW commissioned a case-finding study that was completely inadequate and a waste of money, even after the Dust Diseases Board wrote to SafeWork pleading with it to get it right.

It was essentially a desktop review of existing data from three New South Wales Government agencies, which failed to meet the intention of the 2019 recommendation that a comprehensive case study be undertaken. Unlike Queensland's case-finding study, which was led by health experts and found that one in four manufactured stone workers had silicosis, it did not pick up on installers who were subcontractors, sole traders or labour hire workers who do not have a direct link to a fabrication site. The Standing Committee on Law and Justice report stated:

We are disappointed that the 'case-finding study' carried out by Golder Associates was essentially a desktop review of data on silicosis cases already identified. The intention of the committee's recommendation to conduct a case-finding study, made twice, was to ensure that we build a comprehensive understanding of where cases of silicosis are emerging.

The testimony at recent budget estimates hearings by SafeWork representatives that the case study report was the best in the country is nothing short of bizarre and delusional. We need a proper case-finding study and we need it now. Secondly, icare is relying on X‑rays to initially screen workers. Expert testimony to the review stated that an X‑ray does not enable early detection of silicosis and that the high resolution of CT scans is essential. As somebody who has gone through health issues, I can attest that CT is the best form of detection. CT is very important. That is why Labor is calling on the Government to look at the recommendation about CT scans. It can go to Queensland and find out how it is done up there. CT scans are used in Western Australia, Victoria and Queensland to screen workers.

The WorkSafe WA silica compliance project report released this week examined 90 workers who received a CT after being cleared by an X-ray. Seven of those workers had silicosis, and 40 per cent had other respiratory findings such as lung damage. The chest X-rays did not identify silicosis. Our screening program does not fund nor mandate that all workers exposed to silica dust should be screened using a CT scan rather than an X-rays. That must change. Again, for the public and members listening, dust diseases do not only affect particular people who live in particular areas; it affects everyone across New South Wales. I ask the key ministers—Minister Dominello, Minister Tudehope and the Treasurer—why are we not doing this?

Western Australia used to use X-ray to detect dust diseases but a report on commerce.wa.gov.au. released this week examined 90 workers who were told previously that they did not have silicosis. Those workers had had an X-ray and were told that they are all good to go. After a CT scan, seven of those 90 have silicosis. They have done a CT and seven of those have now been diagnosed with dust diseases and 40 per cent have lung damage. That is a massive statistic. It is nearly 50 per cent. The X-rays did not identify silicosis. Our screening program does not fund or mandate that all workers exposed to silica dust should be screened using CT scan rather than X‑ray. I am urging the Government and whoever is giving—

Mr Geoff Provest:

Just repeats.

Ms SOPHIE COTSIS:

It might sound a bit boring to you, but this is about workers.

Mr Geoff Provest:

You are repeating yourself a fair bit.

Ms SOPHIE COTSIS:

I beg your pardon?

Mr Geoff Provest:

You are repeating yourself.

Ms SOPHIE COTSIS:

I want to emphasise that this is really important.

Mr Geoff Provest:

We understand.

Ms SOPHIE COTSIS:

You should understand, because you have had a lot of time with deal with this. People are dying because you guys are using outdated technology.

TEMPORARY SPEAKER (Mr Alex Greenwich):

Order! The member for Canterbury will direct her comments through the Chair.

Ms SOPHIE COTSIS:

I apologise. With respect to the member for Tweed, this is important. I will repeat myself for emphasis because people are dying from dust diseases. There are four reports out with recommendations and the Government has not accepted those recommendations. The Government could mandate CT scans before the next election in the four weeks left in this Parliament. It could start scanning people using the appropriate medical technology to detect silicosis so we do not have young 35‑year-old or 45‑year-old men dying and leaving their families destitute. It is not much to ask that we save lives, particularly men's, in a democratic State such as ours. That is all.

The New South Wales Government does not even know how many workers could currently be impacted by silicosis because, despite calls over the years from a multitude of experts, it is not moving on a licensing scheme, as Victoria has done. From 15 November 2022, all businesses in Victoria working with engineered stone must be licensed. To get that licence they must demonstrate they meet safety requirements, and suppliers cannot supply engineered stone to businesses that do not have a licence. Multiple experts at the New South Wales inquiries have found year after year that the oversight of SafeWork NSW to ensure workplaces are safe from silica dust is totally and utterly inadequate.

The current requirements for air monitoring to prevent silicosis are disastrous for the occupational health and safety of workers. Other States have more prescriptive requirements around air monitoring than New South Wales. But even with lower standards, there is still a widespread lack of compliance with air quality monitoring across industries. Businesses are not monitoring the concentration of dust and are not required to report unsafe levels to SafeWork, so any regulations are effectively meaningless. The same goes for the ban on the dry cutting of manufactured stone. Evidence to the committee showed it is widespread at installation sites across New South Wales. SafeWork inspectors are not visiting installation settings. Manufactured stone suppliers know no-one is watching and no-one is being fined so the practice continues. Prevention is the key and that will need action. We are calling for that action to start.

Finally, there is a lack of inspection of dry cutting incidents. Dry cutting is directly linked to the development of silicosis and has been banned in New South Wales since 1 July 2020. However, medical specialists, occupational hygienists, legal and work, health and safety experts at the 2019-21 review of the Dust Diseases Scheme raised concerns that the manufactured stone industry is notorious for non-compliance with the ban, as well as not meeting its obligations to monitor for silica dust exposure. In complete contrast to the SafeWork evidence that the practice of dry cutting in New South Wales was rare, on the basis that there had only been two fines for it two years, multiple expert submissions and testimony contended that SafeWork's inability to know the location of all the manufactured stone fabrication sites in New South Wales along with few inspections of installation sites for dry cutting and lack of fines for noncompliance have meant the practice continues.

SafeWork only undertook one visit to inspect installation sites for dry cutting in 2021 and only one other until April 2022. The 2021 visit following public reports of a dry cutting incident was followed up five days later—way after the incident had occurred—and no fine was issued. There have been only two fines for dry cutting since November 2021 and these were at manufactured stone factories.

The New South Wales Government said it did not support the registration of stone fabrication sites because SafeWork NSW was aware of and had visited all manufactured stone fabrication sites in New South Wales. That was completely unsupported by multiple experts at the 2021 review of the Dust Diseases Scheme. Work health and safety expert Kate Cole, an important person with a scholarly expert background, gave evidence that between 2020 and 2021 SafeWork NSW was only able to undertake inspections across less than 60 per cent of engineered stone businesses.

First of all, I welcome and acknowledge the Government's amendment about historical incorrect payments and I acknowledge all members who have worked on that issue. We are here to rectify that legally. I will outline the reasons why the Government should take immediate action on those recommendations that have been put forward report after report. If the Government finishes this Parliament implementing one recommendation and that is screening, we will be one step closer to saving the lives of thousands of people across this State.

Mr GEOFF PROVEST (Tweed) (19:26:04):

I contribute to debate on the Workers Compensation (Dust Diseases) Amendment Bill 2022. The Workers' Compensation (Dust Diseases) Authority is responsible for administering the Dust Diseases Scheme under the Workers' Compensation (Dust Diseases) Act 1942, which is to be read together with the pre-2012 Workers Compensation Act 1987. This legislation is complex. Over time, multiple legislative amendments have resulted in ambiguity in the interpretation of provisions for the calculation of injured worker entitlements. Icare and its predecessor organisations had continued payment practices that appeared to be reasonable but became inconsistent with the legislation provisions.

The Asbestosis and Mesothelioma Association of Australia is based in my electorate. It is a worthwhile organisation, created to support victims. I meet with it a few times per year. I have been able to gain various grants for the association so that it can continue its valuable work in representing victims of these terrible dust diseases. Historical and current payment practices to injured workers have become inconsistent with the legislation as it has been amended over the years. Scheme benefits being paid to injured workers no longer align to requirements of the legislation. In some instances, changes to the entitlements under the legislation were an unintended consequence of amendments for a different purpose.

The bill amends rates of compensation to injured workers to align with the 1987 Act rather than with the lower rates under the Workers' Compensation Act 1926 and ensures that workers get paid a statutory rate that is 20 per cent higher than what they are currently entitled to. It amends provisions so that regardless of the day of the injury occurring, the calculations of benefits for injured workers are consistent and in line with the rates within the general workers compensation scheme. Without legislative amendment, it would be necessary to change current payment practices and injured workers would lose entitlements that have, in practice, been paid to date. The bill preserves the current payment practices and amends the legislation to be consistent with those practices. Without the legislative amendments, current payment practices would need to change to reflect provisions within the existing legislation, which are currently inconsistent and inequitable.

The bill before the House represents another important step in our reform agenda and will ensure that the Dust Diseases Authority delivers the scheme in line with the legislative provisions in a way that is fair and reasonable to all claimants. I thank all those who contributed to the bill. The bill amends the 1987 Act so that current weekly wage rates can be calculated according to the Australian Bureau of Statistics [ABS] average earnings. Under the current legislation, totally disabled workers who are retired or unemployed are entitled to weekly benefits according to their current weekly wage rate [CWWR] during their first 26 weeks of incapacity. The CWWR is based on the value of award rates that the workers were earning when they left the occupation which caused their dust diseases. That requires workers to provide documentation from many years ago to verify in detail their historic earnings, which creates a burden for workers who may be elderly or gravely ill and results in undue delays and complexities in calculating their entitlements.

The bill amends the legislation to allow icare to use ABS average wage rates statistics to estimate past earnings as accurately as possible, thus removing unreasonable requests of injured workers. Icare will apply the ABS average weekly total cash earnings by detailed occupation for a reference period of May 2018 as the average wage rates. The May 2018 figures are the same as those used for icare's recent remediation process for underpayments, being the most recent available when the program commenced. Icare adjusts wage rates every six months for CPI, as released by SIRA, to ensure that the figures remain current.

The bill will contribute to improving the customer experience for workers in the scheme by removing ambiguity over their entitlements and enabling prompt payments to injured workers. Without the bill, payment practices would need to change and injured workers would lose entitlements that have, in practice, been paid to date. The bill before the House represents another important step in our reform agenda and will ensure that the authority can deliver a scheme that is fair and equitable. I thank all those involved in drafting the bill.

Ms JENNY LEONG (Newtown) (19:31:13):

On behalf of The Greens, I contribute to debate on the Workers Compensation (Dust Diseases) Amendment Bill 2022. The bill makes sensible and necessary amendments to the Workers' Compensation (Dust Diseases) Act 1942 and the Workers Compensation Act 1987 regarding rates of compensation payable to workers suffering from dust diseases. The bill validates certain past payments of compensation made to injured workers by deeming amendments to have been in force on and from the commencement of the Workers Compensation Act or relevant amendments to that Act. The bill comes off the back of a big remediation project that icare undertook when transferring dust disease claims to a new IT system, where it was realised that claims had been both underpaid and overpaid.

By codifying and legislating this overpayment, the bill will ensure that payments made at a higher rate are protected, which is a welcome amendment for workers suffering from dust diseases. The bill will also make it easier for people to prove their income by allowing icare to use statistics from the Australian Bureau of Statistics [ABS] of an occupation group to determine average income rather than requiring claimants to prove income. That is especially welcome, given that the prolonged nature of dust diseases often means a prolonged time has elapsed between the time of the claim and the proof of income documentation.

I note the incredibly strong work and powerful advocacy that the Construction, Forestry, Maritime, Mining and Energy Union [CFMEU] have been doing in relation to the bill and the recognition of the impact of dust diseases on our community over so many years. I recognise that it sees this as a beneficial amendment for workers because it will allow easier access for workers to their entitlements and will protect payments made at a higher rate rather than removing them. The CFMEU notes that we are always in need of better protection for workers and easier access to compensation to ensure that workers are paid an amount that reflects the severity of having suffered injury or disease through work. The Greens wholeheartedly agree and support that sentiment.

I also acknowledge the workers, victims and families who have suffered as a result of dust diseases in this State and across the country. The fight for justice for victims is deeply grounded within the advocacy and the work over many years of those connected with the union movement, which has been fighting for years for people's right to be safe at work and to enjoy long, decent and healthy lives. I note that the member for Canterbury and Opposition shadow Minister for Work Health and Safety made an incredibly detailed contribution outlining the many impacts that dust diseases have on our community, not just those working on the front line of the building and construction industry and certain industries that are linked to dust diseases but also those who come into contact with them as a result of their workplace or passing through their community spaces. I think it is timely to recognise that certain members sitting on the Opposition benches right now very much have the power and strength to take on ministerial responsibilities. The member for Canterbury certainly demonstrated that in her understanding of the portfolio issues when it comes to work health and safety in this State.

It is only thanks to the long and tireless fight of victims, families and the union movement that dust diseases are now on the agenda. It is absolutely critical to recognise the many recommendations that the Government could act on to improve the lives, the safety and the protection of people who are impacted by dust diseases. It is critical that we reflect on the outrageous and disgraceful behaviour of James Hardie back in the day when it came to asbestos and its impact on so many, and the long‑fought struggle to recognise the need for compensation. The Australian Workers' Union's campaign now in relation to silicosis is another example that highlights the real impact on the lives of young people who are in the prime of their working life and who are now unable to properly breathe and unable to work.

Back in 2004, I had the absolute pleasure of joining the then New South Wales State secretary of the CFMEU, Andrew Ferguson, to storm the James Hardie offices through a back fire exit, attended downstairs at a local cafe by Bernie Banton. We found ourselves locked between the lift shaft and the glass doors of the offices, which were shut, and doing media interviews in the lift foyer in that building down the road at Circular Quay. As we were doing that, one of the most powerful parts of that action, for me, was that the CFMEU members who had joined us on that action were not white, big, burly blokes. Most of them were from South-East Asia and were relatively small guys.

The reason those South-East Asian workers, who were living and working in Australia at the time, were the ones who faced the biggest risk of asbestos‑related diseases on unsafe worksites was that they did not understand the risks, and they were being put into dangerous workplaces and dangerous situations because the regulation and oversight were not there. We had a community campaign where certain workers in certain industries had become aware of the risks around asbestos, and we saw that members of communities where English was a second language were being put at greater risk because there was no protection for people who did not understand all of the requirements of their worksites and the requirements of the SafeWork regulations to ensure that they were not being put at risk of dust diseases.

We now know about the impact of dust diseases—whether it be silicosis or other diseases—on workers, people and families across this State. So much more could be done to protect them. Back in 2004 we were still trying to advocate and highlight the issues around asbestos; everyone now is so conscious and so aware of the risks. But the Government is now disregarding the risks of other, broader dust diseases that people are facing. As the member for Canterbury identified, we can do more to ensure that there is better detection. Implementing the recommendations in reports that have looked into this issue in detail is absolutely critical.

I give my commitment to the CFMEU that if it ever wants to storm another building, I am very happy to be there. I also say that it is absolutely critical to recognise that in any direct action—whether it be like the 2004 direct action of workers in the James Hardie offices down at Circular Quay, or whether it be like the actions and strikes across the State now—the reason unions are important and why it is critical that workers act and stand up together is because they are doing it for the interests and the safety of themselves and our communities. That is why industrial action is so important.

The bill is a critical reminder that our rights at work are not and have never been handed to us. Whether it is workers compensation, the eight-hour working day or leave entitlements like sick leave and parental leave, our rights have always been hard fought and won, whether it be by standing on the picket line, storming a building or taking strike action. The Greens will always support the right of workers and all people in our community to be safe and protected in their workplace. I commend the bill to the House.

Mr LEE EVANS (Heathcote) (19:39:31):

The Workers' Compensation (Dust Diseases) Amendment Bill 2022 seeks to amend the Workers' Compensation (Dust Diseases) Act 1942 and the Workers Compensation Act 1987 to simplify benefit calculations to ease the administrative burden on injured workers under the Dust Diseases Scheme. The proposed bill seeks to introduce amendments to allow current weekly wage rates to be calculated according to the Australian Bureau of Statistics [ABS] average weekly total cash earnings by detailed occupation for the reference period May 2018—as adjusted biannually for CPI—to estimate past earnings as accurately as possible without making unreasonable requests of injured workers to provide documentation.

Currently, payments to totally disabled workers who are retired or unemployed in their first 26 weeks of incapacity are required to be calculated according to their current weekly wage rate, or CWWR. The CWWR is calculated according to the current value of the award rate that the worker was earning at the time they left the occupation that caused their dust disease. The administrative requirements to provide verifiable documentation on historical earnings would place a burden on workers who are elderly or in poor health and who may find it challenging to meet those reporting obligations. Workers are required to source records or recall information on their earnings from many years or decades prior in circumstances where many of those workers are elderly or are gravely ill. That often results in delay of payments and in additional stress on injured workers at a very difficult time.

The proposed legislative amendment will simplify the process and allow the administrator to use the ABS average earnings statistics—specifically, ABS average weekly total cash earnings by detailed occupation for the reference period May 2018 and adjusted, as I said, for CPI—to estimate the past earnings for the calculation of benefits where workers are unable to provide evidence of past income. That will provide additional certainty and reduce the administrative burden on injured workers with dust diseases, who may have limited life span due to their injuries. The bill before the House represents another important step in the reform agenda to ensure that the Dust Disease Authority is delivering the scheme in line with legislated provisions and in a way that is fair and reasonable for all claimants.

On a personal note, my father-in-law passed away with dust disease. He was a builder. As the member for Newtown spoke about, James Hardie products were the reason he had dust disease. They used to dry-cut a James Hardie product with cross saws in the building process. The end of his life was not a pretty one. He had more issues with his health due to dust disease than probably any member needs to hear about tonight. Let me just say that the end of his life was a painful and excruciating thing for the family to watch. The last gasp that he took was in an intensive care unit, where he had been for three weeks. They did as much as they could to get oxygen into him, but there was just no space left. I understand how terrible it is for people who are affected by this scourge on our community, and I hope all those people out there who are or may be affected get the best help available. I thank all those involved in drafting the bill. I commend the bill to the House.

Mr DAVID MEHAN (The Entrance) (19:43:59):

I make a contribution to debate on the Workers' Compensation (Dust Diseases) Amendment Bill 2022. The object of the bill is to amend the Workers' Compensation (Dust Diseases) Act 1942 and the Workers Compensation Act 1987 with regard to rates of compensation payable to workers suffering from dust disease. The bill validates certain past payments of compensation made to injured workers by deeming amendments to have been in force on and from the commencement of the Workers Compensation Act 1987 or relevant amendments to that Act. As part of that, it corrects a mis-payment that had been perpetrated by icare in payments made to workers impacted by dust disease, which is welcomed. Labor supports the bill. I support what my shadow Minister, the member for Canterbury, has said on the subject. There is a whole bunch more we could and should be doing. This bill is a step in the right direction but there is more to be done.

Alongside this amendment bill, changes are also being made to the regulations to expand the number of schedule 1 diseases listed, particularly those related to silica, which is a significant cause of dust disease in the modern world through manufactured stone and tunnelling. As we expand our understanding of the connection between dust and disease, it is heartening to see that the new diseases identified as being caused by dust are captured by the provisions of the bill. I use this opportunity to acknowledge the victims of dust diseases and their families. I also acknowledge trade union representatives, who are the driving force for action to make worksites safer and reduce the impact of dust disease but who also support workers with regulation when those workers contract a dust disease due to their work.

I acknowledge the work that those groups do through their trade unions to impact on the Australian Labor Party, to which most unions are affiliated. It is that party that saw the dust diseases Act first created in 1942. Particularly, I recognise the Asbestos Diseases Foundation of Australia [ADFA], a group that works tirelessly to support and advocate on behalf of those impacted by the deadliest dust diseases caused by asbestos, mesothelioma and asbestosis. I pay tribute to the ADFA executive. Its current president is Barry Robson, the former senior vice‑president of the Waterside Workers' Federation. The vice-president, Maree Stokes, is a resident of the Central Coast and a dear friend whose husband, a bus driver on the Central Coast, contracted mesothelioma and died. The family then contracted the disease as well because family wash clothes. Her husband's sister also contracted mesothelioma and died of the disease.

Maree leads a dedicated group on the Central Coast that advocates and continues to support one another as victims of mesothelioma. The group always attends the Workers' Memorial Day held on 28 April each year on the Central Coast. I acknowledge the other members of the ADFA executive: Kate Robson, my old comrade from the National Union of Workers; Karen Martin, the ADFA secretary; and Etta Kinnaird, committee member. They do fantastic work. Without them, we would not be here making these regulatory changes that will not only make workplaces safer but also take care of the people who contract dust disease at work. This bill is a step in the right direction but more needs to be done. In the meantime, I commend the bill to the House.

Ms FELICITY WILSON (North Shore) (19:48:36):

On behalf of Mr Matt Kean: In reply: I thank members for their contributions to debate on the Workers Compensation (Dust Diseases) Amendment Bill 2022. I acknowledge the support for the bill from members across the Chamber and the insightful contributions made by my colleagues. Particularly, I note the contribution of the member for Heathcote and acknowledge his own loss within his broader family, with his father-in-law lost as a victim of a dust disease. It is contributions such as those that make it so clear how important this legislation is. As members would have noted from my second reading speech, this bill represents an important step in our reform agenda. It will ensure that the Dust Disease Authority is delivering the scheme in line with legislated provisions and in a fair and reasonable way to all claimants.

In 2020 icare identified a number of mis-payments. A remediation program to repay those workers who had been underpaid is now complete, but during this remediation program it was identified that some workers had been overpaid through a continuation of payment practices that appeared reasonable but became inconsistent with legislative changes that had occurred over the years. The bill before the House amends the Workers' Compensation (Dust Diseases) Act 1942 and the Workers Compensation Act 1987.

Briefly, I will again highlight some of the measures in the bill. It amends the rates of compensation to injured workers to align with the 1987 Act rather than those lower rates within the Workers' Compensation Act 1926. It also ensures that workers get paid a statutory rate that is 20 per cent higher than currently entitled. In addition, the bill ensures simplified benefit calculations and, therefore, eases the administrative burden on injured workers. The bill also amends provisions so that regardless of the date of the injury occurring, the calculation of benefits for injured workers is consistent and in line with the rates within the general workers compensation scheme.

The bill further amends provisions to ensure that partially disabled workers who are retired or unfit for suitable duties as a result of their dust diseases are entitled under legislation to payments for their dependants. In addition, the bill ensures that the current weekly wage rates can be calculated according to Australian Bureau of Statistics average weekly total cash earnings by detailed occupation and also adjusted biannually for CPI. This will directly assist many of these workers by removing the difficult burden of verifying earnings by providing documentation from many years ago.

This bill will contribute to improve the customer experience for workers in the scheme by removing ambiguity over what their entitlements are, and ensure that payments are made promptly to workers who in many instances are elderly and may be gravely ill. Without the bill, payment practice would need to change and our injured workers would lose entitlements that have to date been paid in practice. The cost impact of the recommended amendments will be funded by a marginal increase in the rate of drawdown from the scheme's investment fund. There will be no need to increase the levy and thus there will be no cost impact on employers from the recommendation. The recommended amendments do not put the sustainability of the scheme at risk.

I acknowledge the contribution of the member for Canterbury, who raised a number of matters that are beyond the scope of the bill before the House. The issues that she has highlighted relate to the Government's response to the 2021 Review of the Dust Diseases Scheme by the Standing Committee on Law and Justice. The Government response, published on 12 September, supported, or supported in part, nine of the 12 recommendations, reflecting the Government's commitment to evidence-based improvements in reducing exposure to dust diseases in New South Wales. Of course, this includes ongoing engagement with employee representatives and experts in this field.

The bill before the House today is an important piece of legislation, particularly for those who are injured and affected by dust diseases. It represents another important step in our reform agenda as a government. I again thank all members who contributed to this debate on the Workers Compensation (Dust Diseases) Amendment Bill 2022. Particularly, I thank the department and the Minister's team, including Alex, who is with us in the Chamber today, for the work they have done on this piece of legislation to ensure the support of all members in this place. I commend the Bill to the House.

TEMPORARY SPEAKER (Mr Alex Greenwich):

The question is that this bill be now read a second time.

Motion agreed to.

Third Reading

Ms FELICITY WILSON:

On behalf of Mr Matt Kean: I move:

That this bill be now read a third time.

Motion agreed to.