(P1/5)

20 February 2010

Ms Lisa Hunt

Chief Executive Officer

WorkCover Authority of NSW

via facsimile (02) 4325 4145

Dear Ms Hunt,

Re: WorkCover NSW – Scheme Agent Contracts Availability from website

I refer to the redesigned WorkCover NSW (WorkCover) website, released to the public yesterday,

19 February 2010. Of specific interest to me are pages concerning Scheme Agent Contracts.

Background For your information, here is the background to the public release by WorkCover of the Scheme

Agent Contracts:

On 29 January 2008 I made an application under the Freedom of Information Act 1989

(NSW) (“the FOI Act”) for information on various subjects, including contracts between:

o WorkCover and Allianz Australia Insurance Limited and

o WorkCover and Allianz Australia Workers’ Compensation (NSW) Limited.

On 11 March 2008 Ms Wendy Laing, Freedom of Information Officer, determined that,

in relation to the contracts, there were “no records found”.

On 16 March 2008 I complained to the NSW Ombudsman about the FOI determination.

On 29 October 2008 Mr Wayne Kosh of the Office of the NSW Ombudsman wrote to your

predecessor, Mr John Blackwell, and stated:

o “It would certainly seem to me that there may well be numerous documents subject

to FOI application” and

o “I would therefore appreciate WorkCover writing to and releasing to

him any parts of the contracts signed between the Nominal Insurer and Allianz

Australia Workers’ Compensation (NSW) Limited…”

On 12 December 2008 Mr John Blackwell wrote to me and stated:

o “WorkCover made a legal and factual error in its determination of your FOI

application in so far as it determined that WorkCover does not hold documents in

the form of contracts between WorkCover and Allianz…” and

o “WorkCover is of the view that the [scheme agent deed] document is exempt under

clause 13(a) of Schedule 1 to the FOI Act as it ‘contains matter the disclosure of

which would found an action for breach of confidence’.”

(P2/5)

On 17 December 2008 I applied to the Administrative Decisions Tribunal (ADT) for a review

of the decision on the basis that “WorkCover’s response is not in accordance with the

determination by the NSW Ombudsman.”

Concurrent with denying my FOI application (for what I consider to be spurious reasons),

WorkCover had surreptitiously entered into negotiations with the Scheme Agents to reach

agreement on release of parts of the Scheme Agent Contracts.

After an ADT planning meeting on 2 March 2009 WorkCover released to me sections of the

contracts in paper form.

With letter dated 2 April 2009 from Mr Craig McBride, Manager, Executive and Ministerial

Services Unit, I received additional portions of the contracts and all previously released

documents but this time in electronic form (as specified in my FOI application).

On or around 2 April 2009 all of the documents previously released to me were also made

available via the WorkCover website.

On 17 November 2009 the ADT provided written reasons (non-publication order in force) for

its decision in this matter.

On 18 November 2009 Ms Narelle Caldwell, Director Agent Operations, pursuant to the

ADT’s directions, released to me the final document in relation to my FOI application – the

“Key Personnel Register” of the Nominal Insurer’s agreement with Allianz Australia Workers’

Compensation (NSW) Limited.

After undoubtedly spending many thousands of dollars on high profile legal representation to

attempt to block my FOI request, a matter which took almost two years to be finalised, WorkCover

made the following disingenuous claim on its (previous and current) websites1:

“As part of WorkCover’s commitment to maintaining transparency of the workers compensation scheme, the Nominal Insurer has recently consulted with the seven Scheme Agents to determine what parts of the contracts might be publicly released without compromising confidentiality. “

As at 10 December 2009 there were a total of 104 documents (in Adobe PDF format) relating to

Scheme Agent Contracts available from the WorkCover website. As at yesterday, after the launch of

your new website, there is only one document available2, as follows:

Scheme Agent Deed, Publication No. 2129 (PDF format - 463 Kb)

A total of 103 documents are now no longer available – these are listed in “Schedule 1”. It would

seem to me that the “commitment to maintaining transparency of the workers compensation

scheme” has quickly been forgotten about.

I wish to remind you of the following from Mr Kosh’s determination of my complaint:

1 WorkCover website: Insurance and premiums → Scheme agents → Released agent contract information

http://www.workcover.nsw.gov.au/insurancepremiums/schemeagents/Pages/Releasedagentcontractinformation.aspx 2 WorkCover website: Forms and publications → Publications → Scheme agent deed 2010 to 2014

http://www.workcover.nsw.gov.au/formspublications/publications/Pages/schemeAgentDeed20102014.aspx

(P3/5)

2005 Deed The 2005 Deed documents appear to have been removed from the WorkCover website between

10 December 2009 and 6 February 2010 – unrelated to yesterday’s launch of the redesigned site.

I am of the opinion that the 2005 Deed should have remained on your website for historical

purposes. Availability of these documents would allow comparison of Scheme Agent Contracts over

time and would be in keeping with WorkCover’s previous “commitment to maintaining transparency

of the workers compensation scheme”.

As at 10 December 2009 both the 2005 Deeds and 2010 Deeds were available from the WorkCover

website. Despite them being on one page, these were clearly marked, leaving little room for

confusion between old and new deeds. (For reference, website image3 is available at the end of

“Schedule 1”.)

3 WorkCover website (previous site structure): Workers Compensation → Scheme changes → Scheme Agent

Contracts http://workcover.nsw.gov.au/WorkersCompensation/NewSchemeArrangements/Pages/SchemeAgentContracts.html

(P4/5)

2010 Deed Of the 2010 Deed documents only one remains on your site with the rest deleted, as outlined above.

Concerns I am very concerned that my FOI application (which took almost 2 years to bring to conclusion) and

resulted in the rightful release to the NSW public of documents which were previously secret, has

now been undone.

Based on the information before me, I cannot be entirely certain whether all of these deletions are

an unintended consequence of the website redesign, or a deliberate action by WorkCover.

However, removal of the 2005 Deed does appear to be intentional as these documents were

removed prior to the launch of the redesigned site.

I am also inclined to believe that removal of documents relating to the 2010 Deed has also been

intentional. I base this on the fact that you have released the new website in what appears to be its

final form. That form is largely a transposition of information contained on the previous website.

That the 2010 Deed documents are missing is indeed conspicuous.

At this point in my inquiries it would be appreciated if you could address the following:

1. Why were all of the 2005 Deed documents removed from the WorkCover website?

2. Will WorkCover consider making available the 2005 Deed documents from the WorkCover

website? If yes, when will this happen? If no, please detail your reasons for this.

3. Why have all but one of the 2010 Deed documents been removed from the WorkCover

website?

4. Will WorkCover consider making available the remaining 2010 Deed documents from the

WorkCover website? If yes, when will this happen? If no, please detail your reasons for this.

Whilst I have asked you to address specific matters (and I would ask that you address these

individually), please feel free to add any additional comment that may better explain any

WorkCover NSW position.

Your response Please be aware that this inquiry is of a general nature, that is, not about any specific claim for

workers compensation. It would be appreciated if you would not make reference to any specific

claim in your response.

Further, as my letter to you is not about a specific claim for workers compensation, I do not consent

to the contents of this letter being discussed with any agent for the NSW WorkCover Scheme, or

indeed with any party external to WorkCover NSW.

(P5/5)

Obviously it is in the best interests of all parties that this matter does not again become protracted.

As such, it would be appreciated if your response would be in my hands no later than 30 days from

today.

Yours sincerely,

(Schedule 1: P1/5)

Schedule 1

Scheme Agent Deed documents deleted from WorkCover NSW website

2005 Deed (expired 31 December 2009) 1. Schedule of Non Confidential Sections, Publication No. 5936 (PDF format - 20 Kb)

2. Scheme Agent Deed, Publication No. 5937 (PDF format - 325 K)

3. Schedule 1 - Business Model, Publication No. 5920 (PDF format - 30 Kb)

4. Schedule 2 - Scheme Services, Publication No. 5921 (PDF format - 81 Kb)

5. Schedule 4 - Commercial Management Framework, Publication No. 5922 (PDF format -

46 Kb)

6. Schedule 4 - Attachment A, Publication No. 5923 (PDF format - 13 Kb)

7. Schedule 4 - Attachment B, Publication No. 5924 (PDF format - 9 Kb)

8. Schedule 4 - Attachment C, Publication No. 5925 (PDF format - 15 Kb)

9. Schedule 4 - Attachment D, Publication No. 5926 (PDF format - 12 Kb)

10. Schedule 5 – KPIs, Publication No. 5927 (PDF format - 23 Kb)

11. Schedule 7 - Variation Framework, Publication No. 5928 (PDF format - 23 Kb)

12. Schedule 7 - Attachment A, Publication No. 5929 (PDF format - 19 Kb)

13. Schedule 8 - Statutory Declaration, Publication No. 5930 (PDF format - 9 Kb)

14. Schedule 10 - Disengagement Plan, Publication No. 5931 (PDF format - 12 Kb)

15. Schedule 11 - Transition Services, Publication No. 5932 (PDF format - 37 Kb)

16. Schedule 12 - Performance Guarantee, Publication No. 5933 (PDF format - 63 Kb)

17. Schedule 14 – Glossary, Publication No. 5934 (PDF format - 87 Kb)

18. Schedule of Confidential Sections, Publication No. 5935 (PDF format - 19 Kb)

2010 Deed (commenced 1 January 2010) 19. Schedule 1 - Business Model, Publication No. 2114 (PDF format - 35 Kb)

20. Schedule 2 - Scheme Services, Publication No. 2115 (PDF format - 90 Kb)

21. Schedule 4 - Commercial Management Framework, Publication No. 2121 (PDF format -

47 Kb)

22. Schedule 4 - Attachment A, Publication No. 2117 (PDF format - 18 Kb)

23. Schedule 4 - Attachment B, Publication No. 2118 (PDF format - 14 Kb)

24. Schedule 4 - Attachment C, Publication No. 2119 (PDF format - 19 Kb)

25. Schedule 4 - Attachment C - Appendix 1, Publication No. 2116 (PDF format - 10 Kb)

26. Schedule 4 - Attachment D, Publication No. 2120 (PDF format - 22 Kb)

27. Schedule 7 - Variation Framework, Publication No. 2122 (PDF format - 25 Kb)

28. Schedule 8 - Statutory Declaration, Publication No. 2123 (PDF format - 17 Kb)

29. Schedule 9 - Information and IP Deed, Publication No. 2124 (PDF format - 80 Kb)

30. Schedule 10 - Disengagement Plan, Publication No. 2125 (PDF format - 17 Kb)

31. Schedule 11 - Claims and Policy Transfer, Publication No. 2126 (PDF format - 33 Kb)

32. Schedule 12 - Performance Guarantee, Publication No. 2127 (PDF format - 62 Kb)

33. Schedule 14 - Scheme Governance, Publication No. 2128 (PDF format - 31 Kb)

Schedule 1 (continued)

(Schedule 1: P2/5)

Operational Instructions - Claims 34. 1.1 – Commutations, Publication No. 2130 (PDF format - 30 Kb)

35. 1.2 - Weekly Payment of Compensation, Publication No. 2138 (PDF format - 41 Kb)

36. 1.3 - Private Investigators, Publication No. 2152 (PDF format - 19 Kb)

37. 1.4 - Claim Payments by Employers, Publication No. 2153 (PDF format - 20 Kb)

38. 1.8 - Domestic Assistance, Publication No. 2154 (PDF format - 24 Kb)

39. 1.9 - Nominal Insurer Confidential Information, Publication No. 2155 (PDF format - 36 Kb)

40. 1.11 - Section 53 Vocational Re-Education Programs, Publication No. 2131 (PDF format -

28 Kb)

41. 1.15 - Recover from a Third Party, Publication No. 2132 (PDF format - 20 Kb)

42. 1.16 - Permanent Impairment of the Spine, Publication No. 2133 (PDF format - 21 Kb)

43. 1.17 - Formal Recognition of Common Law Claims and Work Injury Damages, Publication No.

2134 (PDF format - 21 Kb)

44. 1.18 - Increased Medical and Hospital Expenses, Publication No. 2137 (PDF format - 23 Kb)

45. 1.18 - Appendix 1, Publication No. 2135 (PDF format - 21 Kb)

46. 1.18 - Appendix 2, Publication No. 2136 (PDF format - 12 Kb)

47. 1.21 - Role & Use of Doctors in the Workers Compensation System, Publication No. 2139

(PDF format - 41 Kb)

48. 1.22 - Management of Hearing Loss Claims, Publication No. 2142 (PDF format - 33 Kb)

49. 1.22 - Attachment A, Publication No. 2140 (PDF format - 21 Kb)

50. 1.22 - Attachment B, Publication No. 2141 (PDF format - 13 Kb)

51. 1.23 - Ongoing Partial Incapacity Benefits, Publication No. 2143 (PDF format - 62 Kb)

52. 1.24 - Level of WPI for Purposes of Payment of Lump Sum Compensation & Threshold for

other Entitlements, Publication No. 2144 (PDF format - 17 Kb)

53. 1.25 - Injury Management of Workers on Workers Compensation Commission Awards,

Publication No. 2145 (PDF format - 26 Kb)

54. 1.26 - Arrangement for Payments to Medicare Australia, Publication No. 2150 (PDF format -

30 Kb)

55. 1.26 - Attachment 1, Publication No. 2147 (PDF format - 211 Kb)

56. 1.26 - Attachment 2, Publication No. 2146 (PDF format - 368 Kb)

57. 1.26 - Attachment 3, Publication No. 2148 (PDF format - 81 Kb)

58. 1.26 - Attachment 4, Publication No. 2149 (PDF format - 158 Kb)

59. 1.27 - Payment of Legal Costs if Professional Costs or Disbursements are Disputed,

Publication No. 2151 (PDF format - 26 Kb)

60. 1.28 - Determining Liability for Recess Claims, Publication No. 2214 (PDF format - 24 Kb)

Operational Instructions - Policies 61. 2.1 - Use of Wage Audits in Marketing, Publication No. 2187 (PDF format - 20 Kb)

62. 2.2 - Retrospective Amendments to Costs of Claims, Publication No. 2193 (PDF format -

28 Kb)

63. 2.3 - Automatic Renewal of Policies, Publication No. 2194 (PDF format - 25 Kb)

64. 2.4 - Retrospective Amendments of Classifications, Publication No. 2195 (PDF format - 35 Kb)

65. 2.5 - Policies for Residential Bodies Corporate, Publication No. 2196 (PDF format - 23 Kb)

66. 2.6 - Timely Issue of Premium Calculation Forms, Publication No. 2197 (PDF format - 28 Kb)

Schedule 1 (continued)

(Schedule 1: P3/5)

67. 2.7 - Transfer of Experience between Employers, Publication No. 2198 (PDF format - 31 Kb)

68. 2.9 - Certificates of Currency, Publication No. 2199 (PDF format - 41 Kb)

69. 2.12 - Administration of Policies, Publication No. 2188 (PDF format - 35 Kb)

70. 2.14 - Late Payment Fee for Additional Premium Resulting from Wage Audits, Publication

No. 2189 (PDF format - 33 Kb)

71. 2.15 - Basic Tariff Premium Changing, Publication No. 2190 (PDF format - 27 Kb)

72. 2.16 - Plate Rates for Taxi Owners and/or Operators, Publication No. 2191 (PDF format -

43 Kb)

73. 2.17 - Reinstatement of Statutory Instalments, Publication No. 2192 (PDF format - 19 Kb)

Operational Instructions - Financial 74. 3.1 - Taxation Management (including Goods and Services Tax), Publication No. 2156 (PDF

format - 47 Kb)

75. 3.2 - Taxation of Benefit Payments, Publication No. 2157 (PDF format - 25 Kb)

76. 3.3 - Unpresented Cheques and Unidentified Deposits, Publication No. 2158 (PDF format -

28 Kb)

77. 3.4 - Banking Services, Publication No. 2159 (PDF format - 83 Kb)

78. 3.4 - Attachment A, Publication No. 2160 (PDF format - 26 Kb)

79. 3.4 - Attachment B, Publication No. 2161 (PDF format - 18 Kb)

80. 3.5 - Cash Forecasting Management, Publication No. 2162 (PDF format - 52 Kb)

81. 3.6 - Remittance Advices, Publication No. 2163 (PDF format - 26 Kb)

82. 3.7 - Payments Authorised by the Nominal Insurer, Publication No. 2164 (PDF format - 21 Kb)

83. 3.8 - Financial Reporting and Audit, Publication No. 2165 (PDF format - 24 Kb)

Operational Instructions - General 84. 4.1 - Privacy Complaints Handling, Publication No. 2166 (PDF format - 21 Kb)

85. 4.2 - Scheme Standardised Forms, Publication No. 2167 (PDF format - 25 Kb)

86. 4.3 - Use of WorkCover and Nominal Insurer Logos, Publication No. 2168 (PDF format -

43 Kb)

87. 4.4 - Litigation Policy, Publication No. 2169 (PDF format - 47 Kb)

88. 4.5 - Nominal Insurer Model Litigant Policy, Publication No. 2170 (PDF format - 24 Kb)

89. 4.6 - Media Code of Conduct, Publication No. 2171 (PDF format - 23 Kb)

90. 4.7 - Provision of Insurance Services, Publication No. 2172 (PDF format - 24 Kb)

91. 4.8 - Cross Border Provisions, Publication No. 2173 (PDF format - 39 Kb)

Operational Instructions - Manuals 92. M1 - 2009-10 Financial Reporting Manual (July 2009), Publication No. 2174 (PDF format -

203 Kb)

93. M2 - Claims Technical Manual Version 4.5 (July 2009), Publication No. 2179 (PDF format -

992 Kb)

94. M3 - Policy Technical Manual Version 3.5 (July 2009), Publication No. 2180 (PDF format -

613 Kb)

Schedule 1 (continued)

(Schedule 1: P4/5)

95. M4 - Claims Estimation Manual, Publication No. 2181 (PDF format - 261 Kb)

96. M5 - File Transfer Manual, Publication No. 2182 (PDF format - 135 Kb)

97. M6 - Portability Data Requirements Agents - Version 7.0, Publication No. 2183 (PDF format -

66 Kb)

98. M7 - Premium and Debt Collection Manual, Publication No. 2184 (PDF format - 241 Kb)

99. M7a - Premium and Debt collection Manual - Appendix A, Publication No. 2185 (PDF format

- 49 Kb)

100. M9 - Records Management Manual, Publication No. 2186 (PDF format - 42 Kb)

101. M10 - Wage Audit Insurer Manual - Version 8.0, Publication No. 2186 (PDF format - 124 Kb)

102. M11 - Wage Audit Services Manual, Publication No. 2176 (PDF format - 26 Kb)

103. M12 - Wages Definition Manual - June 2010, Publication No. 2178 (PDF format - 1260 kb)

Schedule 1 (continued)

(Schedule 1: P5/5)

2005 Deed documents

2010 Deed documents

Operational document set