Vocational Rehabilitation Hazel Armstrong Barrister and Solicitor June 2009

Challenges  In this presentation I am focussing on the legal incentives provided by the 2008 Amendment Act – New incentives on employers and ACC to help older workers to recover and get back to work –New incentives to provide high quality rehabilitation –New incentives to provide for longer periods of rehabilitation –New provision focussing on fair compensation for injured employees

Vocational rehabilitation and ageing workforce  People are working for longer – NZ has an ageing workforce  Desire for employers and society to retain skilled older workers in the workforce  Desire by workers to stay in the workforce longer to retain connection to the workplace and to maintain higher income from earnings (cf superannuation)

Reasons for ageing workforce  Age of eligibility to superannuation may be extended out to 67  Level of superannuation may not be sufficient to support people living solely on superannuation  Family members may not be in a position to support older people at home  Society may wish to encourage people to stay in work longer  People are healthier for longer

Age Discrimination and vocational rehabilitation  From 1 st October 2008 IPRC Act amended  Section 85 – provision of vocational rehabilitation – amended  Receipt of superannuation no longer a ground for discrimination against claimants seeking vocational rehabilitation

Age discrimination and vocational rehabilitation  ACC cannot discriminate on the basis of age.  Section 19 of the Bill of Rights Act and Human Rights Act applies.  Section 21, The Human Rights Act 1993 prohibits discrimination on the basis of age.  An employer cannot discriminate on the basis of age. Section 105 ERA says such discrimination is a ground for a personal grievance.

New duty to provide VR  If an older worker is injured whilst they are employed, there will be a duty to provide vocational rehabilitation on the employer and ACC.  An injured ageing worker can seek vocational rehabilitation.  If an employer does not provide vocational rehabilitation and terminates the employee because they are not medically fit to work, this would be a ground for unjustifiable dismissal.

New policy for ageing workforce  ACC and the employer should provide information about these new rights.  ACC and employers should advise ageing workers how to access vocational rehabilitation.

High Quality Rehabilitation VR can be for longer than 3 years  From 1 st October 2008 VR can be longer than 3 years in duration  E.g. graduated return to work, selected duties  Retraining can be 3 years in duration  Legal incentive has been provided to ensure full recovery before return to work  Employers risk PG or review proceedings under IPRC Act.

High Quality Rehabilitation Earnings to be taken into account  From 1 st October 2008, the person’s earnings at time of injury are relevant when deciding on suitable alternate work  Relevant for those in employment and those whose employment has been terminated.  VR must be tailored to high quality rehabilitation outcomes  This provision applies for rehabilitation plans developed after 1 st October 2008.

New Policy - Abatement  Earnings do not include: – payment made on termination of employment in respect of leave entitlements (e.g. holiday pay) (NEW) –Redundancy payments –Retiring allowances e.g. medical retirement –Pensions Therefore these earnings cannot be abated against weekly compensation. Collective Employment Agreements should be amended to reflect the IPRC Act 2001.

Conclusion  The amendments to the IPRC Act 2001: –Provides incentives for high quality Vocational Rehabilitation –Poses new challenges to employers and ACC –Gives greater protection to injured employees especially ageing workers