Vocational Vocational RehabilitationRehabilitation

Hazel ArmstrongHazel Armstrong

Barrister and SolicitorBarrister and Solicitor

June 2009June 2009

Challenges Challenges

In this presentation I am focussing on the In this presentation I am focussing on the legal incentives provided by the 2008 legal incentives provided by the 2008 Amendment ActAmendment Act– New incentives on employers and ACC to help New incentives on employers and ACC to help

older workers to recover and get back to workolder workers to recover and get back to work– New incentives to provide high quality New incentives to provide high quality

rehabilitationrehabilitation– New incentives to provide for longer periods of New incentives to provide for longer periods of

rehabilitation rehabilitation – New provision focussing on fair compensation New provision focussing on fair compensation

for injured employeesfor injured employees

Vocational rehabilitation and ageing Vocational rehabilitation and ageing workforceworkforce

People are working for longer – NZ has an People are working for longer – NZ has an ageing workforceageing workforce

Desire for employers and society to retain Desire for employers and society to retain skilled older workers in the workforceskilled older workers in the workforce

Desire by workers to stay in the workforce Desire by workers to stay in the workforce longer to retain connection to the longer to retain connection to the workplace and to maintain higher income workplace and to maintain higher income from earnings (cf superannuation)from earnings (cf superannuation)

Reasons for ageing workforceReasons for ageing workforce

Age of eligibility to superannuation may be Age of eligibility to superannuation may be extended out to 67extended out to 67

Level of superannuation may not be Level of superannuation may not be sufficient to support people living solely on sufficient to support people living solely on superannuationsuperannuation

Family members may not be in a position Family members may not be in a position to support older people at hometo support older people at home

Society may wish to encourage people to Society may wish to encourage people to stay in work longerstay in work longer

People are healthier for longerPeople are healthier for longer

Age Discrimination and vocational rehabilitationAge Discrimination and vocational rehabilitation

From 1From 1stst October 2008 IPRC Act October 2008 IPRC Act amendedamended

Section 85 – provision of vocational Section 85 – provision of vocational rehabilitation – amendedrehabilitation – amended

Receipt of superannuation no longer Receipt of superannuation no longer a ground for discrimination against a ground for discrimination against claimants seeking vocational claimants seeking vocational rehabilitationrehabilitation

Age discrimination and vocational rehabilitationAge discrimination and vocational rehabilitation

ACC cannot discriminate on the basis of ACC cannot discriminate on the basis of age. age.

Section 19 of the Bill of Rights Act and Section 19 of the Bill of Rights Act and Human Rights Act applies.Human Rights Act applies.

Section 21, The Human Rights Act 1993 Section 21, The Human Rights Act 1993 prohibits discrimination on the basis of prohibits discrimination on the basis of age.age.

An employer cannot discriminate on the An employer cannot discriminate on the basis of age. Section 105 ERA says such basis of age. Section 105 ERA says such discrimination is a ground for a personal discrimination is a ground for a personal grievance. grievance.

New duty to provide VRNew duty to provide VR

If an older worker is injured whilst they are If an older worker is injured whilst they are employed, there will be a duty to provide employed, there will be a duty to provide vocational rehabilitation on the employer vocational rehabilitation on the employer and ACC.and ACC.

An injured ageing worker can seek An injured ageing worker can seek vocational rehabilitation. vocational rehabilitation.

If an employer does not provide vocational If an employer does not provide vocational rehabilitation and terminates the rehabilitation and terminates the employee because they are not medically employee because they are not medically fit to work, this would be a ground for fit to work, this would be a ground for unjustifiable dismissal.unjustifiable dismissal.

New policy for ageing workforceNew policy for ageing workforce

ACC and the employer should ACC and the employer should provide information about these new provide information about these new rights.rights.

ACC and employers should advise ACC and employers should advise ageing workers how to access ageing workers how to access vocational rehabilitation.vocational rehabilitation.

High Quality RehabilitationHigh Quality RehabilitationVR can be for longer than 3 yearsVR can be for longer than 3 years

From 1From 1stst October 2008 VR can be longer October 2008 VR can be longer than 3 years in durationthan 3 years in duration

E.g. graduated return to work, selected E.g. graduated return to work, selected dutiesduties

Retraining can be 3 years in durationRetraining can be 3 years in duration Legal incentive has been provided to Legal incentive has been provided to

ensure full recovery before return to workensure full recovery before return to work Employers risk PG or review proceedings Employers risk PG or review proceedings

under IPRC Act.under IPRC Act.

High Quality RehabilitationHigh Quality RehabilitationEarnings to be taken into accountEarnings to be taken into account

From 1From 1stst October 2008, the person’s October 2008, the person’s earnings at time of injury are relevant earnings at time of injury are relevant when deciding on suitable alternate workwhen deciding on suitable alternate work

Relevant for those in employment and Relevant for those in employment and those whose employment has been those whose employment has been terminated.terminated.

VR must be tailored to high quality VR must be tailored to high quality rehabilitation outcomesrehabilitation outcomes

This provision applies for rehabilitation This provision applies for rehabilitation plans developed after 1plans developed after 1stst October 2008. October 2008.

New Policy - AbatementNew Policy - Abatement

Earnings do not include:Earnings do not include:– payment made on termination of employment payment made on termination of employment

in respect of leave entitlements (e.g. holiday in respect of leave entitlements (e.g. holiday pay) pay) (NEW)(NEW)

– Redundancy paymentsRedundancy payments– Retiring allowances e.g. medical retirementRetiring allowances e.g. medical retirement– Pensions Pensions Therefore these earnings cannot be abated Therefore these earnings cannot be abated

against weekly compensation. Collective against weekly compensation. Collective Employment Agreements should be amended Employment Agreements should be amended to reflect the IPRC Act 2001. to reflect the IPRC Act 2001.

ConclusionConclusion

The amendments to the IPRC Act The amendments to the IPRC Act 2001:2001:

– Provides incentives for high quality Provides incentives for high quality Vocational Rehabilitation Vocational Rehabilitation

– Poses new challenges to employers and Poses new challenges to employers and ACCACC

– Gives greater protection to injured Gives greater protection to injured employees especially ageing workersemployees especially ageing workers