Dangerous tasks are common in the construction workplace.
Workers' compensation or workers' comp is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence. The trade-off between assured, limited coverage and lack of recourse outside the worker compensation system is known as "the compensation bargain.” One of the problems that the compensation bargain solved is the problem of employers becoming insolvent as a result of high damage awards. The system of collective liability was created to prevent that and thus to ensure security of compensation to the workers.
While plans differ among jurisdictions, provision can be made for weekly payments in place of wages (functioning in this case as a form of disability insurance), compensation for economic loss (past and future), reimbursement or payment of medical and like expenses (functioning in this case as a form of health insurance), and benefits payable to the dependents of workers killed during employment.
General damage for pain and suffering and punitive damages for employer negligence are generally not available in workers' compensation plans, and negligence is generally not an issue in the case.
Origin and international comparison
Laws regarding workers compensation vary, but the Workers' Accident Insurance system put into place by Prussian Chancellor Otto von Bismarck in 1884 with the start of Workers' Accident Laws is often cited as a model for the rest of Europe and, later, the United States.[1] After the early Prussian experiments, the development of compensation laws around the world was in important respects the result of transnational networks among policymakers and social scientists. Thus while different countries have their own unique history of workers' compensation, compensation laws developed around the world as a global phenomenon, with each country's deliberation on compensation laws being informed by deliberation in other countries.[2]
Statutory no-fault compensation
Workers' compensation statutes are intended to eliminate the need for litigation and the limitations of common law remedies by having employees give up the potential for pain- and suffering-related awards in exchange for not being required to prove tort (legal fault) on the part of their employer. The laws provide employees with monetary awards to cover loss of wages directly related to the accident as well as to compensate for permanent physical impairments and medical expenses.
The laws also provide benefits for dependents of those workers who are killed in work-related accidents or illnesses. Some laws also protect employers and fellow workers by limiting the amount an injured employee can recover from an employer and by eliminating the liability of co-workers in most accidents. In the United States, state statutes establish this framework for most types of employment, while federal statutes are limited to federal employees or to workers employed in some significant aspect of interstate commerce.[3]
The exclusive remedy provision states that workers' compensation is the sole remedy available to injured workers, thus preventing employees from also making tort liability claims against their employers.
Common law remedies
In common law nations, the system was motivated by an "unholy trinity" of tort defenses available to employers, including contributory negligence, assumption of risk, and the fellow servant rule.[4]
Common law imposes obligations on employers to provide a safe workplace, provide safe tools, give warnings of dangers, provide adequate co-worker assistance (fit, trained, suitable "fellow servants") so that the worker is not overburdened, and promulgate and enforce safe work rules.[5]
Claims under the common law for worker injury are limited by three defenses afforded employers:
The Fellow Servant Doctrine is that employer can be held harmless to the extent that injury was caused in whole or in part by a peer of the injured worker.
Contributory negligence allows an employer to be held harmless to the extent that the injured employee failed to use adequate precautions required by ordinary prudence.
Assumption of risk allows an employer to be held harmless to the extent the injured employee voluntarily accepted the risks associated with the work.[5]
By nation
Australia
As Australia experienced a relatively influential labour movement in the late 19th and early 20th century, statutory compensation was implemented very early in Australia. Each territory has its own legislation and its own governing body.
A typical example is Work Safe Victoria, which manages Victoria's workplace safety system. Its responsibilities include helping employees avoid workplace injuries occurring, enforcing Victoria's occupational and safety laws, providing reasonably priced workplace injury insurance for employers, assisting injured workers to return to the workforce, and managing the workers' compensation scheme by ensuring the prompt delivery of appropriate services and adopting prudent financial practices.[6]
Compensation law in New South Wales has recently (2013) been overhauled by the state government. In a push to speed up the process of claims and to reduce the amount of claims, a threshold of 11% WPI (whole person impairment) was implemented for physical injuries and 15% for psychiatric injuries[7]
Workers' compensation regulators for each of the states and territories are as follows:[8]
Northern Territory – Work Health and Safety (National Uniform Legislation) Regulations[12]
Australian Capital Territory – Workers Compensation Act 1951[13]
Queensland – Workers Compensation and Rehabilitation Act 2003[14]
South Australia – Workers Rehabilitation and Compensation Act 1986[15]
Tasmania – Workers Rehabilitation and Compensation Act 1988[16]
Victoria – Workplace Injury Rehabilitation and Compensation Act 2013[17]
Western Australia – Workers Compensation and Injury Management Act 1981[18]
Brazil
The National Social Insurance Institute (in Portuguese, Instituto Nacional do Seguro Social – INSS) provides insurance for those who contribute. It is a public institution that aims to recognize and grant rights to its policyholders. The amount transferred by the INSS is used to replace the income of the worker taxpayer when he or she loses the ability to work due to sickness, disability, age, death, involuntary unemployment, or even pregnancy or imprisonment. During the first 15 days, the worker's salary is paid by the employer. After 15 days, the salary is paid by the INSS, as long as the employee is unable to work. Although the worker's income is guaranteed by the INSS, the employer is still responsible for any loss of working capacity, temporary or permanent, when found negligent or when its economic activity involves risk of accidents or developing labour-related diseases.
Canada
Workers' compensation was Canada's first social program to be introduced as it was favoured by both workers' groups and employers hoping to avoid lawsuits. The system arose after an inquiry by Ontario Chief Justice William Meredith, who outlined a system in which workers were to be compensated for workplace injuries if they gave up their right to sue their employers. It was introduced in the various provinces at different dates. Ontario and Nova Scotia were first and second in 1915, Manitoba in 1916, British Columbia in 1917, Alberta and New Brunswick in 1918, and Saskatchewan adopted the program in 1930. It remains a provincial responsibility, and thus the rules vary from province to province. In some provinces, such as in Ontario's Workplace Safety and Insurance Board, the program also has a preventative role ensuring workplace safety. In British Columbia, the occupational health and safety mandate (including the powers to make regulation, inspect and assess administrative penalties) is legislatively assigned to the Workers' Compensation Board of British Columbia (WorkSafeBC). In most provinces, the workers' compensation board or commission remains concerned solely with insurance. The workers' compensation insurance system in every province is funded by employers based on their payroll, industry sector, and history of injuries (or lack thereof) in their workplace (usually referred to as "experience rating").
The German worker's compensation law of 6 July 1884,[19] initiated by Chancellor Otto von Bismarck,[20][21] was passed only after three attempts and was the first of its kind in the world.[22] Similar laws passed in Austria in 1887, Norway in 1894, and Finland in 1895.[23]
The law paid indemnity to all private wage earners and apprentices, including those who work in the agricultural and horticultural sectors and marine industries, family helpers and students with work-related injuries, for up to 13 weeks. Workers who are totally disabled get continued benefits at 67 per cent after 13 weeks, paid by the accident funds, financed entirely by employers.
The German compensation system has been taken as a model for many nations.
India
The Workmen's Compensation Act 1923[24] was introduced on 5 March 1923. It includes employer's liability compensation and amount of compensation and covers employees under the Workmen Compensation Act, the Fatal Accident Act and common law. Amended by The Employee’s Compensation (Amendment) Act, 2017
The Workmen's Compensation Act, 1952[29] is modelled on the United Kingdom's Workmen's Compensation Act 1906. Adopted before Malaysia's independence from the UK, it is now used only by non-Malaysian workers, since citizens are covered by the national social security scheme.
Mexico
The Mexican Constitution of 1917 defined the obligation of employers to pay for illnesses or accidents related to the workplace. It also defined social security as the institution to administer the right of workers, but only in 1943 was the Mexican Social Security Institute (IMSS) created.[30] IMSS manages the Work Risks Insurance in a vertically integrated fashion, including registration of workers and firms, collection, classification of risks and events, and medical and rehabilitation services. A reform in 1997 defined that contributions are related to the experience of each employer. Public sector workers are covered by social security agencies with corporate and operative structures similar to those of IMSS.[31][32]
New Zealand
In New Zealand, all companies that employ staff and in some cases others, must pay a levy to the Accident Compensation Corporation, a Crown entity, which administers New Zealand's universal no-fault accidental injury scheme. The scheme provides financial compensation and support to citizens, residents, and temporary visitors who have suffered personal injuries.[33][34]
United Kingdom
Great Britain followed the German model. Joseph Chamberlain, leader of the Liberal Unionist party and coalition with the Conservatives, designed a plan that was enacted under the Salisbury government in 1897. The Workmen's Compensation Act 1897 was a key domestic achievement, although it only covered certain named industries (eg railways, laundries). It served its social purpose at no cost to the government, since compensation was paid for by insurance which employers were required to take out. The system operated from 1897 to 1946.[35] It was expanded to include industrial diseases by the Workmen's Compensation Act 1906 and replaced by a state compensation scheme under the National Insurance (Industrial Injuries) Act 1946. Since 1976, this state scheme has been set out in the UK's Social Security Acts.[36]
Work related safety issues in the UK are supervised by the Health and Safety Executive (HSE), who provide the framework by which employers and employees are able to comply with statutory rules and regulations.[37]
Employer duties enforced by the HSE include protecting the health and safety of workers at workplace, risk assessment and training of workers.[38] If an employer fails to fulfil these responsibilities, resulting in injury to an employee, then the employee has a legal right to make a workers' compensation claim against the employer and to sue their employer.[39]
With the exception of the following, all employers are obliged to purchase compulsory Employer's Liability Insurance in accordance with the Employer's Liability (Compulsory Insurance) Act 1969. The current minimum limit of indemnity required is £5,000,000 per occurrence.[40] Market practice is to usually provide a minimum £10,000,000 with inner limits to £5,000,000 for certain risks, e.g. workers on oil rigs and acts of terrorism.
These employers do not require Employer's Liability Insurance:
joint boards or committees whose members include members of local authorities
police authorities
nationalised industries or their subsidiaries
certain bodies which are financed out of public funds
employers of crews on offshore installations, ships or hovercraft, if they are covered instead with a mutual insurance association of ship owners or ship owners and others
"Employees" are defined as anyone who has entered into or works under a contract of service or apprenticeship with an employer. The contract may be for manual labour, clerical work or otherwise, it may be written or verbal and it may be for full-time or part-time work.
These persons are not classed as employees and, therefore, are exempt:
persons who are not employees (for example independent contractors who are not the employees of the person engaging them)
people employed in any activity which is not a business (such as domestic servants)
people who are related to the employer – husband, wife, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother sister, half-brother or half-sister
people who are not normally resident in the United Kingdom and who are working there for fewer than 14 consecutive days.
Employees need to establish that their employer has a legal liability to pay compensation. This will principally be a breach of a statutory duty or under the tort of negligence. If the employer is insolvent or no longer in existence, then compensation can be sought directly from the insurer under the terms of the Third Parties (Rights against Insurers) Act 2010.
In the United States, some form of workers' compensation is typically compulsory for almost all employers in most states (depending upon the features of the organization), with the notable exception of Texas as of 2018.[43] Regardless of compulsory requirements, businesses may purchase insurance voluntarily, and in the United States policies typically include Part One for compulsory coverage and Part Two for non-compulsory coverage.[44] In many states, employers that can prove they have sufficient funds to cover their workers' compensation liabilities are allowed to engage in self-insurance, a term meaning forgoing the purchase of insurance.[45] By 1949, every state had enacted a workers' compensation program.[46]
Workers' compensation statutes which emerged in the early 1900s were struck down as unconstitutional until 1911 when Wisconsin passed a law that was not struck down; by 1920, 42 states had passed workers' compensation laws.[48]
The Occupational Safety and Health Act of 1970 is a US labor law governing the federal law of occupational health and safety in the private sector and federal government in the United States. It was enacted by Congress in 1970 and was signed by President Richard Nixon on December 29, 1970. Its main goal is to ensure that employers provide employees with an environment free from recognized hazards, such as exposure to toxic chemicals, excessive noise levels, mechanical dangers, heat or cold stress, or unsanitary conditions. The Act created the Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH).
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
The Accident Compensation Corporation (ACC) is the New Zealand Crown entity responsible for administering the country's no-fault accidental injury compensation scheme, commonly referred to as the ACC scheme. The scheme provides financial compensation and support to citizens, residents, and temporary visitors who have suffered personal injuries.
The Workplace Safety and Insurance Board (WSIB) is the workplace compensation board for provincially regulated workplaces in Ontario. As an agency of the Ontario government, the WSIB operates "at arm's length" from the Ministry of Labour, Training and Skills Development and is solely funded by employer premiums, administration fees, and investment revenue. The WSIB is one of the largest compensation boards in North America and is primarily responsible for administering and enforcing the Ontario Workplace Safety and Insurance Act (WSIA).
The Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. (1908), is a United States federal law that protects and compensates railroaders injured on the job.
The Workers Compensation Board of Manitoba (WCB) is an agency of the Government of Manitoba that provides a system for workplace injury and disability insurance for workers and employers of Manitoba, paid for by employers.
The Workmen's Compensation Act 1897 was a British law in operation from 1897 to 1946. Joseph Chamberlain, leader of the Liberal Unionist party and in coalition with the Conservatives, designed a plan that was enacted under the Salisbury government in 1897. The act was a key domestic achievement. It served its social purpose at no cost to the government, since employers were required to cover medical costs of injuries on the job. It replaced the Employers' Liability Act 1880, which gave the injured worker the right to sue the employer but put the burden of proof on the employee. After 1897, injured employees had only to show that they had been injured on the job. The act was modelled on German law, where roughly the same rights were awarded to workers in their 1884 law. However, the Workmen's Compensation Act 1897 did not require any form of risk pooling, such as insurance, on the part of the employers. As pointed out in the International Labour Organization 1935 "Report on Social Insurance", compulsory insurance was only introduced in 1934, and only for coal miners at first. The act was replaced by an expanded scheme under the Workmen's Compensation Act 1906, whereby insurance became mandatory on the part of the employers, thus introducing the first social insurance scheme into the British case.
German Statutory Accident Insurance or workers' compensation is among the oldest branches of German social insurance. Occupational accident insurance was established in Germany by statute in 1884. It is now a national, compulsory program that insures workers for injuries or illness incurred through their employment, or the commute to or from their employment. Wage earners, apprentices, family helpers and students including children in kindergarten are covered by this program. Almost all self-employed persons can voluntarily become insured. The German workers' compensation laws were the first of their kind.
The WorkCover Authority of New South Wales was a New South Wales Government agency established in 1989. The agency created regulations to promote productive, healthy and safe workplaces for workers and employers in New South Wales. The agency formed part of the Safety, Return to Work and Support Division established pursuant to the Safety, Return to Work and Support Board Act, 2012 (NSW).
WorkSafe Victoria is the trading name of the Victorian WorkCover Authority, a statutory authority of the state government of Victoria, Australia.
The California Labor Code, more formally known as "the Labor Code", is a collection of civil law statutes for the State of California. The code is made up of statutes which govern the general obligations and rights of persons within the jurisdiction of the State of California. The stated goal of the Department of Industrial Relations is to promote and develop the welfare of the wage earners of California, to improve their working conditions and to advance their opportunities for profitable employment."
The Virginia Workers' Compensation Commission (VWC) is an agency of the U.S. state of Virginia that oversees the resolution of workers' compensation claims brought in that state, in accordance with the Virginia Workers' Compensation Act. The Commission has exclusive jurisdiction to adjudicate such claims. Its decisions may be appealed to the Virginia Court of Appeals. The Commission is led by a Senior Leadership team consisting of three Commissioners, an Executive Director and a Chief Deputy Commissioner. The Commissioners are appointed by the Virginia General Assembly and serve staggered six-year terms. Honorable Robert A. Rapaport, Honorable Wesley G. Marshall and Honorable R. Ferrell Newman currently serve as Commissioners. The Commissioners elect a Chairman for a term of three years. Commissioner Rapaport currently serves as Chairman. Ms. Evelyn McGill is the Commission’s Executive Director and Honorable James J. Szablewicz is the Commission’s Chief Deputy Commissioner. The Commission is headquartered in Richmond, Virginia, and has offices and hearing locations at various places around the state.
The Workers' Compensation Board of British Columbia, operating as WorkSafeBC, is a statutory agency that was made in 1917, after the provincial legislature put into force legislation passed in 1902. This legislation is known as the Workers Compensation Act.
The Occupational Health and Safety Act 2000 is a repealed statute of New South Wales (NSW). The Act was repealed by the Work Health and Safety Act 2011.
Marine Services International Ltd v Ryan Estate, 2013 SCC 44 is a leading case of the Supreme Court of Canada concerning the coexistence of Canadian maritime law with provincial jurisdiction over property and civil rights, and it marks a further restriction upon the doctrine of interjurisdictional immunity in Canadian constitutional jurisprudence.
The law for workplace bullying is given below for each country in detail. Further European countries with concrete antibullying legislation are Belgium, France, and The Netherlands.
The Employers' Liability Act 1880 was an act passed on 7 September 1880 by the Parliament of the United Kingdom. It enabled workers to seek compensation for injuries resulting from the negligence of a fellow employee.
The Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro, or INAIL, is an Italian statutory corporation overseen by the Ministry of Labour and Social Policies. Its headquarters is in the INAIL Tower in the EUR, Rome.
Workers' compensation in the United States is a primarily state-based system of workers' compensation.
EML Group is one of the oldest Australian personal injury insurers with history dating back to 1910. The service range of this company is only in Australia, with over 3,500 specialists operating in New South Wales, South Australia and Victoria. The head office of this company is in Sydney. Other branches are distributed in Brisbane in Queensland, Parramatta, Newcastle, Tweed and Gosford in New South Wales, and a South Australian branch in Adelaide.
References
↑ Karmel, Dying to Work: Death and Injury in the American Workplace (2017), 180.
↑ Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (2009), 209-266.
↑ Legal Information Institute. "Workers' Compensation". Cornell University Law School. Archived from the original on 5 February 2014. Retrieved 7 February 2014.
1 2 J. Hood, B. Hardy, and L. Simpson. Workers' Compensation and Employee Protection Laws (St. Paul: West Academic Publishing, 2017).
↑ About WorkSafe Victoria – WorkSafe Victoria is the manager of Victoria's workplace safety system. Broadly, the responsibilities of WorkSafe are the following: * help avoid workplace injuries occurring * enforce Victoria's occupational health and safety laws * provide reasonably priced workplace injury insurance for employers * help injured workers back into the workforce * manage the workers' compensation scheme by ensuring the prompt delivery of appropriate services and adopting prudent financial practices.
↑ An Act for Insurance Against Accidents, 6 July 1884, translated and reprinted in F.W. Taussig, Workmen's Insurance in Germany, 2 Q. J. ECON. 111 app. at 121–28 (1887)
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