verging_on_random

Despatches from the front (1)

June 28, 2007 on 11:06 pm | In Uncategorized |

I really get pissed off by the people who defend WorkChoices with the argument that there are hardly any bad bosses these days, so why do workers need protection? People like that are either terribly unobservant or they’ve lead very sheltered lives. So I thought I’d write an occasional series of pieces about the kinds of things that actually happen in the world of work.

The first story is about a bloke who’s in his mid-20s now – let’s call him Scott. When Scott was 15, he wasn’t happy at school. He and his 14 year old mate used to hang out at a factory near where they lived instead of going to school, because they knew a couple of the older guys who worked there. The workers used to get the kids to give them a hand with lifting and carrying. After a couple of weeks of this, the owner of the factory offered Scott a job.

Being unhappy at school (and having a mother who took a ‘hands off’ approach to raising the five kids she’d had to four different fathers), Scott jumped at the offer. He was paid $50 a day, which to him was a fortune.

Unfortunately, on about his fourth or fifth day on the job, Scott slipped off the forklift truck and it ran over his ankle. One of the older workers took him to the local hospital where he was treated. Nothing was broken but his ankle was badly bruised and he was on crutches.

Within a few days Scott’s ankle swelled up and he was running a fever. He went back to hospital where he was diagnosed with a serious infection in his ankle. He was admitted and put on intravenous antibiotics. They didn’t work. After a few days he underwent surgery in which a large part of the soft tissue in his ankle was removed, leaving an open wound that took some weeks to heal.

Scott has a permanently weakened ankle, has trouble wearing shoes, is severely scarred and is likely to have increasing problems with the joint as he gets older.

Naturally he claimed workers’ compensation from his employer. His employer denied that Scott had ever been employed.

In many cases that would have been the end of the matter and Scott would have been another casualty of a bastard of an employer. However, Scott’s mother took him to a solicitor who was prepared to take the case on a ‘no win no fee’ basis.

It turned out that the employer did not have workers’ compensation insurance. Nevertheless the Workers’ Compensation Board (which has an uninsured liability fund to protect workers whose employers don’t take out insurance) accepted the employer’s assurance that Scott was not an employee. It made no independent inquires and rejected Scott’s claim.

The solicitor commenced legal action against the employer and the Board. In response to threats by their employer that they would be sacked if they told the truth, the workers at the factory denied that Scott had ever been employed. It took more than a year for the matter to come to trial (during which time the employer served a gaol sentence). The other workers had to be subpoenaed to give evidence. On the morning of the hearing, the Board finally produced its records of the matter. Among them were interview transcripts in which workers admitted that their earlier accounts had been lies and that Scott had indeed been employed. The Board’s lawyer hastily sought an adjournment and later that day conceded that Scott had a valid claim for compensation.

This was only the beginning of the matter. The lawyers and doctors now engaged in an interminable argument about the amount of compensation that was payable. Scott had to travel to Brisbane three times for medical examinations.

After another 12 months, the Board offered $14,000 compensation. Scott’s solicitor recommended rejecting the offer but could not offer any sensible advice about how much longer the matter would take to settle or how much more, if anything, he might get if he let it go to trial. He was thoroughly sick of the whole thing and instructed the solicitor to accept the Board’s offer.

A month later, he got a cheque for $2,000. The solicitor kept the other $12,000 for legal fees and doctor’s accounts.

This is by no means an unusual example of the way workplace laws that are fine in theory operate against the interests of workers in practice. Theorising that this particular employer will eventually go broke due to the inexorable workings of the labour market ignore the reality that young naive workers have insufficient knowledge to make informed choices.  Employers like this will usually find new innocents to be exploited.

Government agencies will never be properly resourced to protect workers and leaving it to private lawyers inevitably leads to the kind of result that Scott experienced, where lawyers have no incentive to do anything except keep the case running as long as possible while they ring up enormous bills.

Trade unions are the only institutions that can effectively protect workers in these kinds of situations. Abstract arguments about the virtues of free labour markets simply ignore the realities of many Australian work relationships.