COVID-19 and Workers Compensation: The Significance of Section 19B

Written By Aashna Khanna

Over the last 2 years, COVID-19 has posed a significant risk to frontline staff. Early

research undertaken in frontline workers has indicated that the presence of

significant pressure, long hours and risks exposure to the virus has been associated

with higher incidence of psychological injury, presenting symptoms of major

depression, anxiety, insomnia and psychological distress.

The Workers Compensation Amendment Bill 2021 seeks to repeal section 19B and

related provisions in part 19N of Schedule 6 of the Workers Compensation Act 1987

(NSW), which was enacted into the Act in May 2020 by the emergency provisions.

The enactment of this bill would no longer provide a presumptive right to

compensation under the NSW Workers Compensation Scheme for workers in certain

industries and occupations (set out in paragraph (9) of section 19B) who contract

COVID-19. The bill was passed in the Legislative Assembly on 24 November 2021

and is pending review in the Legislative Council following publication of the Portfolio

Committee – Premier and Finance’s report on 21 February 2022.

Several unions argued that the circumstances surrounding COVID-19 had changed

significantly since its original enactment in May 2020. Hence, due to developments

in government approaches and community understanding to the pandemic, it no

longer should be seen as ‘specific to employment, but a public health issue that

affects the whole community’. The repealment of section 19B would shift the

financial burden of managing workers from the government and employers onto

workers. Ultimately, this would significantly impact all workers, with little to no

support provided to those in casual and precarious employment positions who have

no access to leave or income for the duration of their illness.

Moreover, it was also argued that workers would ultimately maintain the right to

make claims for workers compensation if it could be proven, like any other workplace

injury, that it was acquired at work and not whilst undertaking social or non-work

activities. This was contested with the argument that the process imposed by

section 19B is incredibly efficient. Repealing it would further complicate the workers

compensation process, giving rise to claims often being rejected on the basis that

the disease is now “endemic” within the community. This was also supported by the

fact that NSW Health has significantly scaled back on contact tracing, bringing the

onus back onto the worker and employer to locally contact trace within the workplace

and adding significant difficulty to the process.

Upon review of arguments of both sides, the Committee found that repealment of

section 19B of the Workers Compensation Act 1987 (NSW) should be rejected. It

is extremely important to maintain the support posed by section 19B from workers in

key frontline industries. Repealment of section 19B would further insinuate stress,

anger and sense of abandonment felt throughout the frontline industries throughout

the pandemic.