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RETURN TO WORK BILL
Introduction and First Reading
The Hon. J.R. RAU ( Enfield—Deputy
Premier, Attorney-General, Minister for Justice Reform, Minister for Planning,
Minister for Housing and Urban Development, Minister for Industrial Relations)
(15:37): Obtained leave and introduced a bill for an act to provide for the
recovery, return to work and support of workers in relation to work injuries; to
repeal the Workers Rehabilitation and Compensation Act 1986; to make related
amendments to the Civil Liability Act 1934, the Judicial Administration
(Auxiliary Appointments and Powers) Act 1988, the Motor Vehicle Accidents
(Lifetime Support Scheme) Act 2013, the Supreme Court Act 1935, the WorkCover
Corporation Act 1994 and the Work Health and Safety Act 2012; and for other
purposes. Read a first time.
Second Reading
The Hon. J.R. RAU ( Enfield—Deputy
Premier, Attorney-General, Minister for Justice Reform, Minister for Planning,
Minister for Housing and Urban Development, Minister for Industrial Relations)
(15:39): I move:
That this bill be now read a second time.
Today I am introducing a bill to enact a new scheme to support workers and
employers where there is a work injury—the Return to Work Scheme—and to repeal
the existing scheme established by the Workers Rehabilitation and Compensation
Act 1986.
As the house is aware, the current Workers Rehabilitation and Compensation
scheme does not best serve workers, employers or the state. Workers experience
worse return-to-work outcomes than in other jurisdictions and, for many, the
services provided to them do not support early and effective recovery and return
to work. However, it should be noted that, currently, there are approximately
15,500 new claimants per year, of which about 70 per cent receive either no
income maintenance or less than two weeks' income maintenance.
Published in August 2013, the 2012-13 National Return to Work Survey reported
that South Australia's return-to-work result of 82 per cent is the highest it
has been since 2008-09. Despite this relative improvement, South Australia's
return-to-work rate remains well below that of all other states and has been
consistently below the national average for many years.
I will be seeking leave to insert the remainder of the second reading
explanation into Hansard without my reading it but, in doing so, can I
just acknowledge that, thus far, the engagement that the government has had (and
I, in particular, and my staff) with representatives of employee and employer
associations has been excellent and I commend them for their contributions. I
also wish to place on record that the conversations I have had with the Leader
of the Opposition have also been very positive, and I commend the Leader of the
Opposition for what has, thus far, been a very cooperative and positive
attitude. I seek leave to have the remainder of the second reading explanation
inserted in Hansard without my reading it.
Leave granted.
Employers also pay much more than in other jurisdictions and are not
sufficiently supported to provide their employees with opportunities to remain
at work or return to work early. We have the highest average premium rate, at
about double the rate of other jurisdictions, of 2.75% for the 2014-15 financial
year, compared to 1.47% in New South Wales, 1.272% in Victoria and 1.20% in
Queensland.
Self-insured employers are, generally, performing well. However, more can be
done to enhance the legislative framework in which they are operating.
The Government is committed to improving workers compensation. As part of the
first phase of these reforms a commercially focused Board was put in place for
WorkCover in late 2013. This was supported by the Charter and Performance
Statement, signed by the Premier in his then role of Treasurer and myself, in
August 2013 which set out key priorities, initiatives and requirements for
WorkCover.
As a result, WorkCover's financial position improved by $96 million for the 6
months to 31 December 2013, following the independent mid-year scheme actuarial
valuation. The unfunded liability dropped to $1.23 billion compared to $1.37
billion at June 2013. Despite these recent improvements fundamental change is
required to achieve the focus, performance and level of improvements that are
necessary for a sustainable scheme.
South Australia needs a fair, effective and efficient scheme that supports
injured workers with early intervention, recovery and return to work. It needs
to be a scheme with clear, unambiguous boundaries and less moving parts.
The new Return to Work Scheme will clearly identify each party's role and
obligations, including those of workers, employers and the Corporation. People
will be clear about the part they play in assisting and achieving a return to
work outcome.
The new Scheme is designed, if everything is implemented, understood and decided
as expected, to have a break even premium rate of less than 2%. This is a
significant change which benefits employers.
Early intervention and improving injury management approaches will be at the
heart of the new Return to Work Scheme to provide improved health and life
outcomes for workers. The emphasis of the new Scheme is on capacity and not
incapacity, and medical certificates will need to explain what injured workers
can or will be able to do rather than what they cannot.
Seriously injured workers will be supported with income maintenance payments
until retirement age and lifetime care and support. Non-seriously injured
workers will receive income maintenance support for up to two years and medical
expenses paid for a further year after their income support ceases.
People who are seriously injured will be able to pursue common law damages where
their employer's negligence caused or contributed to the injury in addition to
rights of action against third parties.
People with a physical injury, excluding hearing loss, which results in a whole
person impairment of between 5 and 29% inclusive, will receive additional
compensation by way of a lump sum payment for economic loss.
Significant improvements in dispute resolution are required. The Return to Work
Scheme seeks to minimise the potential for disputes. Improved, evidence-based
decision making and active case management will also minimise the potential for
disputes. Where they do occur, a new South Australian Employment Tribunal will
be responsible for their resolution. These reviews will be heard quickly and
dealt with fairly and effectively. Currently in South Australia about 6% of
active claims are in dispute at any one time. This is much more than comparable
jurisdictions such as New South Wales and Victoria.
The proposed scheme balances the interests of workers and employers. Modelling
the future impact of the changes on workers, using historical data, indicates
that about 94% of people with a work injury will receive either improved or the
same income support benefits. With early intervention initiatives being fully
implemented it is expected that an even higher percentage of people with a work
injury will receive either improved or the same benefits.
There will be an increased emphasis on early intervention, improved service
delivery and support for retraining and job seeking where appropriate. These
services will be intensive and targeted at the needs of the individual. There
will be strengthened obligations on employers to provide work and injured
workers will be able to seek, if needed, an order from the Tribunal to obtain
employment with their pre-injury employer.
Useful definitions and provisions that work well in the existing Act have been
replicated to maintain consistency wherever possible. Examples include the
provisions relating to average weekly earnings, reduction or discontinuance of
weekly payments, employer registration and funding and self-insurance.
Workers and employers will receive better service with legislated obligations
and service standards with which the Corporation and its agents must comply.
The Return to Work Scheme needs an insurer that is expected and required to meet
high-quality service standards focussed on early intervention. Meaningful
obligations will be placed upon the Corporation to achieve this.
South Australia needs a sustainable scheme that provides quality services and
support to injured workers. A scheme that has both a strong regulator and a
service focused insurer. The Return to Work Corporation will take on these roles
under this new legislation.
If this legislation is passed this year, the new Return to Work Scheme will
commence on 1 July 2015.
Key aspects of the new Return to Work Scheme
Objects of the Act
The Return to Work Scheme has a fundamental basis of:
people who have suffered a work injury should be provided early and appropriate
treatment and support to recover and return to work; and
employers should bear the cost of that treatment and support by way of
compulsory insurance.
The objects of the Bill clearly provide that early intervention to support
recovery and return to work is the primary objective of the scheme.
What injuries are covered?
A physical injury must arise out of or in the course of employment and the
employment must be a significant contributing cause of the injury for the claim
to be accepted.
For a claim for psychiatric injury to be accepted, employment must be the
significant contributing cause and it cannot arise from any one or more of the
exclusionary factors listed in the legislation.
Legislative rights and obligations
Legislative obligations are placed on workers, employers and the Corporation.
Workers have a right to:
early intervention;
active case management;
expect their employer to participate and co-operate in assisting in their return
to work;
reasonably request the Corporation to review services or investigate
non-compliance of their employer regarding their retention, employment or
re-employment;
apply to the Tribunal for the employer to provide work.
Workers are obliged to:
give notice of a work injury occurring;
participate in all activities supporting recovery and return to work (exclusion
for seriously injured workers);
provide medical certificates;
return to suitable employment (exclusion for seriously injured workers);
take reasonable steps to mitigate any loss.
Employers have a right to support in claims management and the right to request
a medical examination of the worker.
Employers are obliged to:
support their workers' participation in recovery and return to work activities;
mitigate loss;
provide suitable employment;
pay an appropriate wage for any alternative or modified duties or return to
suitable employment;
give 28 days' notice before termination of employment;
register with the Corporation;
pay a premium;
provide information as requested, keep accounts, maintain confidentiality.
An employer must also appoint (and retain) a return to work co-ordinator to
assist injured workers to remain at or return to work as soon as possible and to
assist in the preparation and implementation of recovery/return to work plans.
The Corporation is obliged to:
adopt a service-oriented approach focused on early intervention;
act professionally and promptly;
provide face-to-face service wherever possible;
ensure injuries and claims are actively managed;
improve recovery and return to work outcomes.
These provisions signal a new era for recovery and return to work. The new
scheme clearly outlines the responsibilities of all key parties, and in
particular the Corporation. For the first time, the new Corporation can be held
to account for its performance and behaviour in both regulating the scheme and
providing services.
Seriously injured workers
One of the key features of the new scheme is the distinction between seriously
injured workers and non-seriously injured workers.
Workers assessed with a whole person impairment of 30% or more will be treated
as seriously injured. The scheme will provide income support for such workers
until retirement age and lifetime care, support and medical services.
Having a distinct boundary here is essential for the scheme to be able to
support those workers who need it most.
Recovery and Return to Work Plans
Injured workers who are likely to be incapacitated for work for more than 4
weeks will have a recovery/return to work plan, which combines the objectives
and functions of the rehabilitation programmes and rehabilitation and return to
work plans under the existing Act.
There is now a clear focus on supporting the worker and the employer along the
recovery and return to work pathway.
Medical services
Workers will be entitled to be compensated for costs of medical services that
are reasonable, necessary and reasonably incurred.
This entitlement ceases 12 months after income support ends (except for
seriously injured workers who will receive lifetime care and support). Medical
certificates will certify workers' capacity and will be required to support any
periods when income support is payable.
Income support
The Corporation must offer to make interim payments if it fails to determine a
claim within 10 business days.
Injured workers will be able to access:
100% of notional weekly earnings (NWE) capped at twice the State average from
0—52 weeks from the date on which the incapacity for work first occurs;
80% of NWE from 53—104 weeks for non-seriously injured workers;
80% of NWE from 53 weeks—retirement age for seriously injured workers.
It should be noted that weeks relates to the passing of calendar weeks rather
than the previous notion of entitlement weeks.
Based on historical experience, out of the approximately 15,500 claims made each
year, about 1,020 will be affected by the two year time-banding of income
support for non-seriously injured workers. This is expected to reduce with
improved early intervention, training and support as well as a clear
understanding of the time banding.
The legislation gives the Corporation the power to designate a weekly amount
that a worker could earn in suitable employment based on his or her capacity to
work. This designated earnings amount will be deducted from the notional weekly
earnings after a 6 month notice period. Essentially this means that weekly
payments are there only to support physical or psychological incapacity, not an
economic incapacity. If someone is fit to return to work but does not do so with
appropriate notice, it becomes an unemployment issue and not a work-injury one.
Again based on historical experience, out of the approximately 6,500 claims in
an injury year that receive income maintenance in the first 12 months, about
2,900 people will receive additional income support due to the changes in the
income support step-downs.
In addition, the amount of income support provided will, where necessary, be
increased so that the combined amount (the amount otherwise payable plus any
designated earnings) is no less than the Federal minimum wage.
Workers may receive supplementary income support payments for incapacity outside
the two year time-banding that results from surgery approved by the Corporation
before the medical services entitlement concludes.
Dependency payments will no longer be affected by income earned from the
investment of the lump sum payable upon a worker's death.
Redemptions
The scheme allows a liability to make weekly payments to be redeemed by a
capital payment to injured workers, by agreement between the injured worker and
the Corporation. The access restrictions to redemptions in the current Act have
been removed.
Redemptions will be used in exceptional circumstances when recovery and return
to work options have been exhausted. Careful control of redemptions is essential
and is enshrined in the new scheme.
If a seriously injured worker elects to receive a redemption he or she cannot
access common law.
Permanent impairment and death lump sums
Only one assessment of a worker's whole person impairment may be made in respect
of impairment resulting from 1 or more injuries arising from the same trauma.
Again, this is an important element of the new scheme. Without this, the scheme
will not be sustainable in the long term.
A lump sum payment for physical injuries is payable where the worker's whole
person impairment is 5% or greater. Consistent with current arrangements, lump
sum compensation is not payable for psychiatric injuries.
The maximum lump sum payment for death will be made to a worker's partner(s) and
child(ren) regardless of their level of dependency.
Common law and lump sum payments for non-economic loss
The Government has previously talked about including access to common law
damages in the new scheme. Following consultation with both employer and worker
representatives, an alternative approach has been established that will largely
maintain the no-fault basis of the scheme and give injured workers greater
certainty about the entitlements available to them.
In addition to the lump sum payment for permanent impairment, an additional lump
sum will be payable to physically injured workers (excluding hearing loss) with
a whole person impairment assessed at 5% or more and less than 30%. This payment
is to acknowledge the potential economic loss associated with a work injury and
will be scaled to make greater payments to those furthest from retirement age.
As already mentioned, workers who are seriously injured will be entitled to
income maintenance payments until retirement age. In addition, those seriously
injured workers whose employer's negligence caused or contributed to the injury,
will be able to pursue a common law claim against their employer. However, they
will be unable to claim damages for future treatment, care and support as a
consequence of the National Injury Insurance Scheme obligations and these
services will continue to be provided by the scheme.
The provisions of the Civil Liability Act1936 apply.
Dispute resolution
The South Australian Employment Tribunal will be solely responsible for
resolving disputes that arise under the new scheme.
A separate Bill is being brought to this Parliament to establish the South
Australian Employment Tribunal, which will have similar powers, functions and
operating arrangements to the South Australian Civil and Administrative
Tribunal. The new Tribunal will be focused on resolving applications for review
as quickly as possible, expediting matters where appropriate with an
inquisitional rather than adversarial approach.
Only those decisions identified in the Act as reviewable can be the subject of
proceedings before the Tribunal.
Only questions of law can be appealed to the Supreme Court, with the
unsuccessful party being at risk for legal costs.
At the worker's request, income support may continue pending the outcome of the
review proceedings, but not beyond the date where the weekly payments would have
come to an end in any event e.g. reaching the end of the time banded scheme, the
worker reaching retirement age, etc.
The Tribunal will be able to access Independent Medical Advisers, operating
under the direction of the Tribunal, for inquiry and report on medical
questions.
Advisory Committee
A Ministerial Advisory Committee will provide advice on matters requested by the
Minister.
They will also establish an accreditation scheme for permanent impairment
assessors and recommend to the Minister the permanent impairment assessors to be
accredited.
Recoveries
In third party recovery actions, the Corporation can enter into a deed of
release with the worker who may retain the balance of the damages recovered from
the third party after repayment of the workers compensation payments already
paid from the settlement sum.
The deed of release will have the effect of discharging any outstanding workers
compensation entitlements and extinguishing the employer's obligation to provide
suitable employment.
A new provision allows the Corporation to recover as a debt any payment made to
workers, employers and providers to which they are not entitled.
Self-insured employers
Self-insured employers have the same obligations as employers to support injured
workers. Self-insured employers are liable for all payments of compensation for
work injuries arising from employment with a self-insured employer.
An employer, or group, can apply for registration as a self-insured employer. A
foreign holding company cannot be taken into account when determining whether an
employer is part of a group.
The Crown and any agency or instrumentality of the Crown will be taken to be
registered as self-insured employers.
Renewal of registration can be made for up to 5 years.
A self-insured employer must pay a fee to the Corporation.
Discontinuance fees have been removed from the scheme.
A self-insured employer can appeal various decisions to the Minister.
Whole Person Impairment Assessments
Whole Person Impairment Assessments form a critical part of the Return to Work
Scheme. The thresholds for access to lump sum payments for permanent impairment
and economic loss and being characterised as a seriously injured worker are all
reliant on the whole person impairment assessment.
Whole person impairment arising from physical injuries will be assessed in
accordance with the Act and by reference to the Impairment Assessment
Guidelines. The guidelines will draw upon the American Medical
Association Guides for the Evaluation of Permanent Impairment, fifth
edition, known as AMA 5. AMA 5 is used consistently across Australian
jurisdictions for the assessment of physical injuries.
Whole person impairment arising from psychiatric injuries will be assessed in
accordance with the Act and by reference to the Impairment Assessment
Guidelines which will be informed by the Psychiatric Impairment Rating
Scale, known as PIRS. PIRS is used consistently across Australian jurisdictions
for the assessment of psychiatric and psychological injuries.
New Corporation
The WorkCover Corporation will be renamed as the Return to Work Corporation.
This is not a superficial name change. It will send a clear message that South
Australia has a focused regulator and insurer equipped to ensure the new scheme
is implemented and managed as intended.
The Corporation will be responsible for administering the new scheme. It will be
expected and required to meet high-quality service standards focused on early
intervention. Meaningful obligations will be placed on the new Corporation.
Standards are included in the legislation about how the Corporation interacts
with injured workers and meets their reasonable expectations.
Scheme bonus period
A framework is included for the spreading of the benefits available from the
scheme performing financially well between workers and employers. Subject to the
scheme's funding level being of at least 100% and achieving a profit from its
insurance operations in 2 consecutive years and actuarial confirmation a 'scheme
bonus period' would be declared.
Based on an assessment by the Corporation of how much could be paid out without
affecting the sustainability of the scheme, equal amounts would be allocated to
reducing the average premium rate employers pay and to a funding pool to provide
job seeking services and developing skills and capacity for workers whose
entitlements have ceased and who have not returned to work.
If scheme funding is below 90% for 2 consecutive years, or if declaring a
'scheme bonus period' would result in the average premium rate falling below
1.25%, a full review of the scheme will be initiated by the Minister.
Review of the Return to Work Scheme
An independent review of the reforms is required to commence three years after
the commencement of the new scheme. Specifically, the review will need to
consider whether the reforms and the dispute resolution approach has achieved a
significant reduction in the number and duration of disputes and the success of
resolving medical related matters.
Other legislative changes
Consequential changes to other Acts
This Bill makes consequential amendments to other Acts, including the Civil
Liability Act1934, the Judicial Administration (Auxiliary Appointments
and Powers) Act1988, the Motor Vehicle Accidents (Lifetime Support
Scheme) Act2013, the Supreme Court Act1935, theWorkCover
Corporation Act1994 and the Work Health and Safety Act2012.
I commend the Bill to Members.
Explanation of Clauses
Part 1—Preliminary
1—Short title
This clause is formal.
2—Commencement
Although the measure is to commence on a day to be fixed by proclamation,
certain provisions of Schedule 9 (Repeal, amendments and transitional
provisions) will come into operation at a time specified in the Schedule.
3—Objects of Act
This clause specifies the object of the Act, which is to establish a scheme for
the support of workers who suffer injuries at work. The primary objective of the
scheme is to be the provision of early intervention in respect of claims so as
to ensure that action is taken to support workers in relation to health,
recovery and return to work. Subclause (2) sets out other objectives that apply
with respect to the Act, including objectives in relation to the services and
support given to workers who suffer injuries at work, limitations on costs to
employers, providing a reasonable balance between the interests of workers and
the interests of employers and reducing disputation when workers are injured at
work.
The clause requires the Corporation, the worker and the employer from whose
employment a work injury arises to seek to achieve an injured worker's return to
work (taking into account the objects and requirements of the Act).
4—Interpretation
This clause provides definitions of a number of terms used in the measure. For
example:
Damages means
damages for injury or loss sustained by a worker in circumstances creating,
independently of the Act, a legal liability in the worker's employer (or a
person who is vicariously liable for the acts of the worker's employer), or
another person, to pay damages to or in relation to the worker or a dependant of
a deceased worker. 'Damages' does not include the following:
a sum required or authorised to be paid under an award or industrial agreement;
a sum payable under a superannuation scheme or any life or other insurance
policy;
any amount paid in respect of costs incurred in connection with legal
proceedings;
damages of a class excluded from the ambit of this definition by the
regulations.
A dependant, in relation to a deceased worker, is a relative of the
worker who, at the time of the death, was wholly or partially dependent for the
ordinary necessities of life on earnings of the worker (or would, but for the
worker's injury, have been so dependent).
An employer is:
a person by whom a worker is employed under a contract of service, or for whom
work is done by a worker under a contract of service (but this is subject to
certain exclusions);
the Crown, where the Crown is, under Schedule 1, the presumptive employer of a
person;
in relation to persons of whom any other person is, by virtue of a provision of
the Act, the presumptive employer—that other person.
The term 'employer' includes a former employer and the legal personal
representative of a deceased employer.
Employment includes
the following:
work done under a contract of service;
the work of a self-employed person to whom the Corporation has extended the
protection of the Act;
the work of persons of whom the Crown is, under Schedule 1, the presumptive
employer;
attendance by a worker at a place of pick-up.
Injury means
a physical or mental injury and, where the context admits, the death of a
worker. The term includes an injury that is, or results from, the aggravation,
acceleration, exacerbation, deterioration or recurrence of a prior injury.
The Tribunal is the South Australian Employment Tribunal.
A worker is—
a person by whom work is done under a contract of service (whether or not as an
employee);
a person who is a worker by virtue of Schedule 1;
a self-employed worker.
The term includes former workers and the legal personal representatives of
deceased workers.
In addition to defining terms used in the measure, this clause deals with a
number of other preliminary matters.
5—Average weekly earnings
This clause provides that the average weekly earnings of an injured worker is
the average weekly amount that the worker earned in relevant employment during
the period of 12 months preceding the date on which his or her injury occurred.
Relevant employment is employment with the employer from whose employment the
injury arose. If the worker was employed by two or more employers when the
injury occurred, relevant employment is constituted by employment with each of
those employers.
In addition, this clause sets out rules in relation to various matters connected
to the determination of a worker's average weekly earnings. For example, the
clause provides that employer superannuation contributions and prescribed
allowances are to be disregarded for the purposes of determining a worker's
average weekly earnings and specifies how and when an overtime component of a
worker's earnings is to be taken into account.
6—Act to bind Crown
This clause provides that the Act binds the Crown in right of the State and in
all of its other capacities.
Part 2—Key principles, concepts and requirements
Division 1—Connection with employment
7—Injury must arise from employment
Clause 7 provides that the Act applies to an injury if (and only if) the injury
arises from employment. An injury arises from employment if the injury arises
out of or in the course of employment and the employment was a significant
contributing cause of the injury. However, in the case of a psychiatric injury,
the injury arises out of employment if it arises out of or in the course of
employment and the employment was the significant contributing cause of the
injury. Additionally, a psychiatric injury only arises from employment if it did
not arise wholly or predominantly from—
reasonable action taken in a reasonable manner by the employer to transfer,
demote, discipline, counsel, retrench or dismiss the worker or a decision of the
employer not to renew or extend a contract of service; or
a decision of the employer, based on reasonable grounds, not to award or provide
a promotion, transfer or benefit in connection with the worker's employment; or
reasonable administrative action taken in a reasonable manner by the employer in
connection with the worker's employment; or
reasonable action taken in a reasonable manner under the Act affecting the
worker.
If the worker's injury is, or results from, the aggravation, acceleration,
exacerbation, deterioration or recurrence of a prior injury, employment must be
a significant contributing cause of the aggravation, acceleration, exacerbation,
deterioration or recurrence. In the case if a psychiatric injury, the employment
must be the significant contributing cause of the aggravation, acceleration,
exacerbation, deterioration or recurrence and the aggravation, acceleration,
exacerbation, deterioration or recurrence must not arise wholly or predominantly
from any action or decision of a kind included in the list above.
This clause includes additional provisions detailing the circumstances in which
the following may arise from employment for the purposes of the Act:
an injury attributable to surgery or other treatment;
an injury arising out of or in the course of a social or sporting activity;
an injury arising out of or in the course of a journey.
8—Effect of misconduct etc
This clause provides that a worker is not entitled to receive services or
benefits under the Act if he or she is guilty of misconduct or acts in
contravention of instructions from his or her employer. Further, services and
benefits are not available if it is established on the balance of probabilities
that the injury is wholly or predominantly attributable to serious and wilful
misconduct on the worker's part or the influence of alcohol or a drug that he or
she voluntarily consumed. This does not include a drug lawfully obtained and
consumed in a reasonable quantity.
9—Evidentiary provision
Clause 9 is an evidentiary provision. For an injury to be compensable under the
Act, it must be established on the balance of probabilities that it arises from
employment. This provision operates subject to certain qualifications and
presumptions specified in the clause and in Schedule 2 and Schedule 3.
Division 2—Connection with State
10—Territorial application of Act
This clause deals with the territorial application of the Act and provides that
the Act applies to a worker's employment if the employment is connected with
South Australia. The clause sets out rules for determining the State with which
a worker's employment is connected. A worker's employment is connected with the
State in which he or she usually works in the relevant employment. If no State,
or no single State, can be identified as the State in which the worker usually
works, his or her employment is connected with the State in which he or she is
usually based for the purposes of the employment or, if no such State can be
identified, the State in which the employer's principal place of business is
located.
The clause also deals with the application of the Act to workers working on
ships where no single State can be identified as the State in which the worker
usually works or is based.
11—Determination of State with which worker's employment is connected in
proceedings under this Act
If the question of whether this State is connected with a worker's employment
arises in proceedings before the Tribunal or a court, the Tribunal or court is
required under this clause to determine the State with which a worker's
employment is connected.
12—Recognition of previous determinations
If the Tribunal or a court of a kind specified under this clause makes a
determination as required under clause 10, the State determined by the Tribunal
or court as the State with which the worker's employment is connected is to be
recognised as such for the purposes of the Act (but this does not mean that the
determination cannot be the subject of an appeal).
Division 3—Fundamental principles, rights and obligations
13—The Corporation
This clause requires the Corporation to—
adopt a service-orientated approach that is focused on early intervention and
the interests of workers and employers; and
seek to act professionally and promptly in everything that it does; and
be responsible and accountable in its relationships with others; and
take reasonable steps to comply with any request made by a worker for a review
of the provision of any service to the worker under the Act or to investigate
any circumstance where it appears that his or her employer is not complying with
a requirement of the Act in relation to the retention, employment or
re-employment of the worker.
Additionally, the clause sets out requirements of the Corporation in relation to
maintaining plans and strategies designed to establish practices and procedures
under which an injured worker's specific circumstances (and those of his or her
employer) will be addressed and specifies the Corporation's objective in respect
of this requirement:
ensuring early and timely intervention occurs to improve recovery and return to
work outcomes including after retraining (if required);
achieving timely, evidence based decision making that is consistent with the
requirements of the Act;
wherever possible, providing a face to face service where there is a need for
significant assistance, support or services;
ensuring regular reviews are taken in relation to a worker's recovery and, where
possible, return to work;
ensuring the active management of all aspects of a worker's injury and any
claim;
encouraging an injured worker and his or her employer to participate actively in
any recovery and return to work processes;
minimising the risk of litigation.
It is made clear in the clause that the policies and procedures set out do not
give rise to substantive rights or liabilities (compared to rights or
liabilities established or prescribed under other relevant provisions of the
Act).
14—Service standards
The Corporation is required under this clause to adopt and apply the service
standards set out in Schedule 5.
15—Workers
This clause provides that a worker who has suffered a work injury is entitled to
expect the following:
early intervention by the Corporation in providing recovery and return to work
services;
the Corporation to actively manage the worker's injury and claim and to provide
services in a manner consistent with the requirements of the Act;
his or her employer to participate and co-operate in assisting the worker's
recovery and return to work and to reasonably support the worker in receiving
any benefit available under the Act.
The clause also requires a worker who has suffered a work injury to—
participate in all activities designed to enable him or her to recover and
return to work as soon as is reasonably practicable; and
participate and co-operate in the establishment of a recovery/return to work
plan; and
comply with obligations imposed by or under a recovery/return to work plan; and
ensure that the Corporation is provided with current medical certificates with
respect to any incapacity for work for which weekly payments are being made so
as to provide evidence to support the continuation of the payments; and
return to suitable employment when reasonably able to do so; and
take reasonable steps to mitigate any possible loss on account of the work
injury.
Specified exceptions to the above apply for seriously injured workers.
16—Worker's duty to give notice of injury
This clause sets out the duty of a worker to give notice of a work injury to his
or her employer (or, if the worker is not in employment or is self-employed, the
Corporation).
17—Employers
This clause provides that an employer of a worker who has suffered a work injury
is entitled to expect—
early intervention by the Corporation in providing recovery and return to work
services to the worker; and
the Corporation to act fairly and reasonably in a manner consistent with the
requirements of the Act; and
support in managing claims and the provision of services available to the worker
under the Act.
The clause requires the employer to, so far as is reasonably practicable—
support the worker in the worker's participation in activities designed to
enable the worker to recover and return to work; and
participate and co-operate in the establishment of any recovery/return to work
plan that is required for the worker; and
comply with obligations imposed on the employer by or under a recovery/return to
work plan for the worker; and
take reasonable steps to mitigate any possible loss on account of the work
injury.
18—Employer's duty to provide work
This clause requires the employer of a worker who has been incapacitated for
work in consequence of a work injury to provide suitable employment for the
worker. This obligation arises if the worker is able to return to work (whether
full-time or part-time and whether or not to the previous employment). The
employment must be employment for which the worker is fit and, to the extent
practicable, the same as, or equivalent to, the employment in which the worker
was working immediately before the incapacity. This obligation applies in
relation to the employer from whose employment the injury arose (the pre-injury
employer) and is subject to certain qualifications set out in subclause (2).
The clause also sets out a procedure for a worker incapacitated by a work injury
to apply to the Tribunal for an order for the pre-injury employer to provide
specified employment to the worker. The worker can make the application if—
he or she has sought employment with the pre-injury employer (consistent with
the requirements of subclause (1)); and
in seeking the employment, he or she—
by written notice to the employer, confirmed that he or she is ready, willing
and able to return to work with the employer and provided information about the
type of employment he or she considers that he or she is capable of performing;
and
complied with any other requirements prescribed by the regulations; and
the employer failed, within a reasonable time, to provide suitable employment to
the worker.
The clause also sets out rules in relation to the costs of applications under
the section and explains what is meant by 'suitable employment' in the context
of the clause.
19—Payment of wages for alternative or modified duties
The employer of a worker who has been incapacitated for work in consequence of a
work injury and undertakes alternative or modified duties under employment or an
arrangement that falls outside his or her contract of service for the employment
from which the injury arose is required under this clause to pay an appropriate
wage or salary in respect of the duties. This requirement operates subject to a
determination of the Corporation.
20—Additional requirement with respect to termination of employment
This clause requires the employer of a worker who has suffered a work injury to
give the Corporation and the worker at least 28 days notice if the employer
proposes to terminate the worker's employment. This requirement does not apply
if—
the employment is properly terminated on the ground of serious and wilful
misconduct; or
the worker is neither participating in a recovery/return to work plan, nor
receiving compensation, for the work injury; or
the worker's rights to compensation for the injury have been exhausted or the
time for making a claim for compensation has expired.
Division 4—Seriously injured workers
21—Seriously injured workers
A seriously injured worker for the purposes of the Act is a worker whose work
injury has resulted in permanent impairment and the degree of whole person
impairment has been assessed under Division 5 for the purposes of the Act to be
30% or more. As stated in the clause, the Act makes special provision in a
number of places for seriously injured workers. The clause allows the
Corporation to make an interim decision that a worker is to be taken to be a
seriously injured worker. An interim decision can be made on the Corporation's
own initiative or on application by the worker.
The clause provides that, in assessing whether the 30% threshold has been met
(that is, whether the degree of whole person impairment resulting from a work
injury is at least 30%)—
impairment resulting from physical injury is to be assessed separately from
impairment resulting from psychiatric injury; and
in assessing impairment resulting from physical injury or psychiatric injury, no
regard is to be had to impairment that results from consequential mental harm;
and
in assessing the degree of whole person impairment resulting from physical
injury, no regard is to be had to impairment that results from a psychiatric
injury or consequential mental harm; and
the 30% threshold is not met unless the degree of whole person impairment
resulting from physical injury is at least 30% or the degree of whole person
impairment resulting from psychiatric injury is at least 30%.
Division 5—Assessment of permanent impairment
22—Assessment of permanent impairment
Clause 22 sets out a scheme for assessing the degree of impairment (that is,
whole person impairment) that applies to a work injury that results in permanent
impairment. An assessment under the clause is to be made in accordance with the
Impairment Assessment Guidelines by a medical practitioner who holds a current
accreditation under the clause.
The Impairment Assessment Guidelines are to be published by the Minister in the
Gazette and must incorporate a methodology that arrives at an assessment of the
degree of impairment of the whole person.
An assessment of the degree of impairment resulting from an injury—
must not be made until the injury has stabilised; and
must be based on the worker's current impairment as at the date of assessment,
including any changes in the signs and symptoms following any medical or
surgical treatment undergone by the worker in respect of the injury; and
must be made at a time determined or approved by the Corporation; and
must be made by an accredited medical practitioner selected in accordance with
the Impairment Assessment Guidelines.
Subclause (8) lists principles that must be taken into account in relation to an
assessment of the degree of impairment resulting from an injury.
The clause provides that only one assessment may be made in respect of the
degree of permanent impairment of a worker from one or more injuries (including
consequential injuries) arising from the same trauma. Any injury that may
subsequently develop or manifest itself or develop after the assessment of
impairment is made will not be assessed. However, this rule operates subject to
an assessment made under Part 8 (Independent medical advice) and the exercise of
any adjudicative functions by the Tribunal or a court. Further, an interim
decision under clause 21 will be taken not to constitute an assessment for the
purposes of the rule that only one assessment may be made. That rule does not
apply in circumstances prescribed by the regulations.
The clause also requires the Advisory Committee to establish, after consultation
with the Minister, an accreditation scheme for medical practitioners who will be
undertaking assessments under this provision.
Part 3—Early intervention, recovery and return to work
23—Object
This clause sets out the object of Part 3, which is to establish a system that
seeks to ensure that a worker who suffers a work injury achieves the best
practicable levels of physical and mental recovery and is, if possible, restored
to the workforce and the community in a timely, safe and durable way.
The clause emphasises the importance of early intervention in the provision of
recovery/return to work services to injured workers and the aim of returning
workers to work in their pre-injury duties or, if that is not reasonably
practicable, other suitable duties or work with another employer.
24—Early intervention, recovery and return to work services
This clause provides that services provided under Part 3 (recovery/return to
work services) may do one or more of the following:
provide for the physical, mental or vocational assessment of a worker;
provide advisory services to a worker, members of the family of a worker, an
employer and others;
assist a worker in retaining, seeking or obtaining employment;
assist in the training or retraining of a worker;
assist a worker to find or establish appropriate accommodation;
provide equipment, facilities and services to assist a worker to cope with any
injury at home or in the workplace;
provide assistance to a person who may be in a position to help a worker to
overcome or cope with an injury;
provide necessary and reasonable costs (including costs of travel, accommodation
and child care) incurred by a worker in order to receive or participate in any
services;
provide anything else that may assist in achieving the objects of Part 3.
Action must be taken as early as possible after a worker suffers a work injury
to determine the most appropriate recovery/return to work services to be
provided to the worker. The Corporation is required under the clause to take
reasonable steps to ensure that a reasonable level of recovery/return to work
services are provided to an injured worker. For the purposes of this Part,
recovery/return to work services will be provided by persons who have been
accredited, approved or appointed under schemes established by the Corporation.
25—Recovery/return to work plans
Clause 25 imposes an obligation on the Corporation to ensure that a
recovery/return to work plan is prepared for a worker if it appears that the
worker is (or is likely to be) incapacitated for work by a work injury for more
than 4 weeks. A plan may be prepared even if the period of incapacity may be
less then 4 weeks but need not be prepared for a worker if the Corporation
considers that, due to the severity of his or her injuries, the focus should be
on other forms of support and services. A recovery/return to work plan is to set
out the actions and responsibilities of a worker, an employer and the
Corporation in order to achieve the earliest possible safe return to work or, if
relevant, to the community on a durable basis. The clause requires that, in
preparing a recovery/return to work plan, consultation is to occur with the
worker and, to the extent that it is necessary or appropriate, the employer. The
clause imposes various other obligations in relation to the preparation of
recovery/return to work programs, including a requirement that plans comply with
standards and requirements prescribed by regulation.
26—Return to work co-ordinators
This clause requires an employer to appoint a return to work co-ordinator and
specifies the functions of a co-ordinator.
27—Standards and facilities established by Corporation
This clause authorises the Corporation to undertake various activities in
relation to the provision of recovery/return to work services. For example, the
Corporation may enter into arrangements with a government agency or other body
under which facilities and services, including medical services, will be
provided to injured workers.
28—Rates for provision of services
Under this clause, the Minister may publish scales of charges that will apply to
the provision of recovery/return to work services. The scales are to be
published in the Gazette on the recommendation of the Corporation. The
Corporation is required under the clause to undertake consultation before making
a recommendation to the Minister about the publishing of a scale of costs.
29—Related initiatives
This clause authorises the Corporation to disseminate information that relates
to work related injuries, to conduct, participate in or subsidise research
promoting the objects of the Part and to encourage and support the work of
organisations that provide assistance to workers who have suffered work related
injuries.
Part 4—Financial benefits
Division 1—Claims
30—Claims
This clause prescribes various requirements in relation to the making of claims
under Part 4, including a requirement that a claim be supported by a certificate
by a recognised health practitioner. The clause deals with various other matters
relating to claims, including, for example, the period within which a claim must
be made, to whom a claim must be given and the obligation of an employer (other
than a self-insured employer) to furnish the Corporation with information the
Corporation requires in order to assess or determine a claim.
31—Determination of claim
This clause provides that the Corporation may, following receipt of a claim,
make the investigations and inquiries it thinks necessary to determine the
claim. The Corporation may require a worker to submit to an examination by a
recognised health practitioner. A claim may be rejected by the Corporation if a
claimant fails or refuses to furnish information reasonably required by the
Corporation or to submit to a required examination.
The Corporation is required to determine claims for compensation as
expeditiously as reasonably practicable. If a claim is for compensation by way
of income support, the Corporation is to endeavour to determine the claim within
10 business days (if practicable). Notice of the rejection of any part of a
claim is to include information required by the regulations as to the grounds of
the rejection and a statement of the claimant's right to have the determination
reviewed. The clause specifies circumstances in which the Corporation may
redetermine a claim.
32—Payment of interim benefits
Clause 32 authorises the Corporation to make interim payments to a claimant
pending the final determination of his or her claim. There is a requirement for
the Corporation to offer to make interim payments if it fails to determine a
claim within 10 business days after the date of receipt of the claim. An amount
paid under this clause to which a claimant was not entitled on the final
determination of the claim may be recovered by the Corporation as a debt.
Division 2—Medical expenses etc
33—Medical expenses
This clause provides that a worker is entitled to be compensated for the costs
of the following services if they are reasonable and necessary and reasonably
incurred by the worker:
the cost of medical services;
the cost of hospitalisation and all associated medical, surgical and nursing
services;
the cost of approved recovery/return to work services;
the cost of travelling, or being transported, to and from any place for the
purpose of receiving medical services, hospitalisation or approved
recovery/return to work services (but not where the worker travels in a private
vehicle);
the cost of accommodation where it is necessary for the worker to be
accommodated away from home for the purpose of receiving medical services or
approved recovery/return to work services (but not exceeding limits prescribed
by regulation);
the cost of attendance by a registered or enrolled nurse, or by some other
person approved by the Corporation or of a class approved by the Corporation, if
the injury is such that the worker must have nursing or personal attendance;
the cost of the provision, maintenance, replacement or repair of therapeutic
appliances;
the cost of medicines and other material purchased on the prescription or
recommendation of a health practitioner;
any other costs (or classes of costs) authorised by the Corporation.
The Corporation may reduce charges it considers excessive or disallow charges
for services that it considers were unreasonable, unnecessary or unreasonably
incurred but, if it does so, must give the provider of the service notice of the
decision to reduce or disallow the charge.
The clause also provides for publication by the Minister, by notice in the
Gazette, of scales of charges for the purposes of the clause. The amount of
compensation for a service covered by a scale of charges must be in accordance
with the scale. The notice must be made on the recommendation of the
Corporation. The clause prescribes various requirements in relation to scales of
charges, including a requirement for the Corporation to consult various bodies
before making a recommendation to the Minister about the publishing of a scale.
This clause also provides an entitlement for workers to apply to the Corporation
for approval to obtain the provision of prescribed classes of services,
appliances, medicines or materials of a kind referred to in the list above.
A person's entitlement to compensation under this clause ceases if he or she has
not had an entitlement to receive weekly payments in relation to the work injury
for a continuous period of 12 months or has not had an entitlement to receive
weekly payments and a period of 12 months has expired. However, this cessation
does not apply in relation to a seriously injured worker or in other
circumstances specified in subclause (21) (including in relation to therapeutic
appliances required to maintain a worker's capacity and surgery that has been
approved by the Corporation before the entitlement ceased) or prescribed by the
regulations.
34—Transportation for initial treatment
This clause applies if a worker is injured at his or her place of employment
during the course of employment and, as a consequence of the injury, requires
immediate medical treatment. The employer is required to provide the worker with
immediate transportation to a hospital or health practitioner for initial
treatment. The transportation is to be provided at the employer's expense.
Division 3—Property damage
35—Property damage
This clause provides for compensation if a worker suffers a work injury and, in
consequence of the trauma out of which the injury arose, damage occurs to
therapeutic appliances, clothes, personal effects or tools of trade of the
worker. The worker is entitled to compensation for the full amount of the damage
(subject to prescribed limitations).
Division 4—Income support
Subdivision 1—Preliminary
36—Capacity to perform work
This clause provides that a worker's current work capacity for the purposes of
the Act is constituted by a present inability arising from a work injury such
that the worker is not able to return to his or her employment at the time of
the injury but is able to return to work in suitable employment. It is further
provided that a worker has no current work capacity if he or she has a present
inability arising from a work injury such that he or she is not able to return
to work in his or her employment at the time of the occurrence of the injury or
in suitable employment.
37—Prescribed benefits
This clause lists prescribed benefits for the purposes of Division 4 as
follows:
any amount paid to the worker by the Corporation or a self-insured employer in
respect of an employment program provided or arranged by the Corporation or
self-insured employer for the purposes of the Act;
any of the following received by the worker from an employer:
any payment, allowance or benefit related to annual or other leave;
any payment, allowance or benefit paid or conferred by the employer on the
worker's retirement;
any payment, allowance or benefit paid or conferred under a superannuation or
pension scheme;
any payment, allowance or benefit paid or conferred on the retrenchment, or in
relation to the redundancy, of the worker;
any other payment, allowance or benefit of a prescribed kind.
38—Prescribed allowances
In Division 4, a reference to weekly earnings or current weekly earnings means
weekly earnings exclusive of prescribed allowances.
Subdivision 2—Entitlement to weekly payments
39—Weekly payments over designated periods for workers other than seriously
injured workers
This clause sets out the principles according to which a worker (other than a
seriously injured worker) who suffers a work injury that results in incapacity
for work is entitled to weekly payments in respect of the incapacity.
If a period of incapacity for work occurs within the period of 52 weeks from the
date on which the incapacity first occurs, the worker is entitled to weekly
payments equal to his or her notional weekly earnings for a period when he or
she has no current work capacity and weekly payments equal to the difference
between his or her notional weekly earnings and his or her designated weekly
earnings for a period when he or she has a current work capacity.
If a period of incapacity for work occurs within the period of 52 weeks
beginning immediately after the end of the first 52 week period, the worker is
entitled to weekly payments equal to 80% of his or her notional weekly earnings
for a period when he or she has no current work capacity and weekly payments
equal to 80% of the difference between his or her notional weekly earnings and
his or her designated weekly earnings for a period when he or she has a current
work capacity.
The designated weekly earnings of a worker for the purposes of the clause
are the greater of the following:
the current weekly earnings of the worker in employment or self-employment;
the weekly earnings that the Corporation determines that the worker could earn
from time to time (including, but not limited to, the amount of any current
weekly earnings) in employment, whether in the worker's employment previous to
the relevant injury or in suitable employment, that the Corporation determines
the worker is capable of performing despite the injury.
There is no entitlement to weekly payments under the clause following the end of
the period of 104 weeks from the date on which the incapacity for work first
occurs.
40—Supplementary income support for incapacity resulting from surgery
This clause provides for supplementary income support payments where an injured
worker has been incapacitated for work, after the end of the period of 104 weeks
from the date on which incapacity first occurs, as a result of surgery approved
by the Corporation. Supplementary income support payments are not payable in
respect of a period of incapacity that occurs more than 13 weeks after the
surgery.
41—Weekly payments for seriously injured workers
This clause sets out the principles according to which a seriously injured
worker who suffers a work injury that results in incapacity for work is entitled
to weekly payments in respect of the incapacity.
If a period of incapacity for work occurs within the period of 52 weeks from the
date on which the incapacity first occurs, the worker is entitled to weekly
payments equal to his or her notional weekly earnings for a period when he or
she has no current work capacity and weekly payments equal to the difference
between his or her notional weekly earnings and his or her designated weekly
earnings for a period when he or she has a current work capacity.
If a period of incapacity occurs after the end of the first 52 week period from
the date on which incapacity first occurs, the worker is entitled to weekly
payments equal to 80% of his or her notional weekly earnings for a period when
he or she has no current work capacity and weekly payments equal to 80% of the
difference between his or her notional weekly earnings and his or her designated
weekly earnings for a period when he or she has a current work capacity.
If a worker who is paid weekly payments on the basis that he or she is a
seriously injured worker is subsequently determined not to be a seriously
injured worker, he or she is entitled to continue to receive payments as if he
or she were a seriously injured worker until the expiration of 8 weeks following
the date of the whole person assessment on account of which the determination
was made. Any further entitlement to weekly payments will be determined on the
basis that the worker is not a seriously injured worker.
42—Federal minimum wage safety net
This clause has the effect of ensuring that the amount that a worker who has
suffered a work injury receives in any week (that is, from a combination of
compensation and designated weekly earnings) is not less than the Federal
minimum wage (as adjusted, if necessary, for part-time workers). If the combined
amount would be less than the Federal minimum wage, the amount of compensation
payable must be increased so that the combined amount is equal to that minimum
(or, in the case of a part-time worker, to the minimum as adjusted).
43—Return to work obligations of worker
A worker who has a current work capacity is required under this clause to make
reasonable efforts to return to work in suitable employment or pre-injury
employment at his or her place of employment or at another place of employment.
44—Termination of weekly payments on retiring age
This clause provides that weekly payments are not payable in respect of a period
of incapacity for work falling after the date on which a worker reaches his or
her retiring age. Despite this, if a worker who is within 2 years of his or her
retiring age or above his or her retiring age becomes incapacitated for work
while still in employment, weekly payments are payable (subject to other
provisions of the Act) for any period of incapacity falling within 104 weeks
after the date on which the incapacity first occurred.
Subdivision 3—Adjustment of weekly payments
45—Adjustments due to change from original arrangements
This clause authorises the Corporation to review the calculation of the average
weekly earnings of a worker for the purposes of making an adjustment. A review
may be undertaken on the Corporation's own initiative or at the request of the
worker. The Corporation may make an adjustment if it finds that there has been a
change that warrants the adjustment. An adjustment may be made if there has
been—
a change in a component of the worker's remuneration used to determine average
weekly earnings (including a component constituted by a non-cash benefit); or
a change in the equipment or facilities provided or made available to the worker
(if relevant to average weekly earnings).
An adjustment under the clause takes effect as an adjustment to the worker's
notional weekly earnings. The adjustment may therefore have the effect of
increasing or reducing weekly payments.
46—Review of weekly payments
This clause authorises the Corporation to review the amount of the weekly
payments made to a worker who has suffered a work injury. A review under this
clause may be undertaken on the Corporation's own initiative, but must be
undertaken if a worker or employer requests the review. If the Corporation finds
on the review that the worker's entitlement to weekly payments has ceased,
increased or decreased, it must adjust or discontinue the weekly payments
accordingly.
47—Economic adjustments to weekly payments for seriously injured workers
The Corporation is required under this clause to review the weekly payments of a
seriously injured worker who is incapacitated for work or appears likely to be
incapacitated for work for more than 1 year. A review must be undertaken during
the course of each year of incapacity. The purpose of the review is to make an
adjustment to the amount of the worker's weekly payments to reflect changes in
rates of remuneration.
Subdivision 4—Reduction or discontinuance of weekly payments
48—Reduction or discontinuance of weekly payments
This clause provides that weekly payments to a worker who has suffered a work
injury may not be reduced or discontinued except specified circumstances.
If the Corporation decides to reduce or discontinue weekly payments under the
clause, it must give notice in writing to the worker. The notice must contain
the information required by the regulations as to the reasons for the decision,
must inform the worker of his or her right to have the decision reviewed and
must be given as required under subclause (6).
If a worker applies to the Tribunal for a review of a decision to reduce or
discontinue weekly payments under this clause within one month of receipt of the
decision, and the worker makes an election under subclause (9), the operation of
the decision is suspended. Weekly payments must then continue or be reinstated
until the matter first comes before a member of the Tribunal. The Tribunal may
then further suspend the operation of the decision from time to time to allow a
reasonable opportunity for resolution of the dispute by conciliation or
determination if the suspension is reasonably necessary in order to avoid undue
financial hardship being suffered by the worker. This power operates subject to
the principle that the Tribunal should give extra weight to taking such action
if it appears to the Tribunal that it is reasonably open to the worker to
dispute the relevant decision. The Tribunal may vary or revoke a decision to
suspend the operation of a decision and may also make an order for the payment
of an amount to represent some or all of any of the weekly payments that have
not been made to the worker during the period of the dispute. If a dispute is
ultimately resolved in favour of the Corporation and the worker has been paid an
amount in excess of his or her lawful entitlement to weekly payments, the
Corporation may recover the amount of the excess (plus interest) from the worker
as a debt or set off the amount recoverable against liabilities of the
Corporation to make payments to the worker. This ability to recover or set off
the excess payment operates subject to the regulations.
This clause also makes provision for review of a worker's circumstances with a
view to reducing or discontinuing weekly payments at the request of an employer
who believes that reasonable grounds exist for a reduction or discontinuance.
Subdivision 5—Related matters
49—Protection from excess payments
This clause provides that a worker is not entitled to receive, in respect of 2
or more injuries, weekly payments in excess of his or her notional weekly
earnings.
50—Weekly payments and leave entitlements
This clause deals with the effect of leave entitlements on weekly payments. A
liability to make weekly payments in respect of a period of incapacity is not
affected by a payment, allowance or benefit for annual leave or long service
leave to which a worker is entitled for that period. Various other matters
relating to leave entitlements and weekly payments are dealt with under the
clause.
51—Absence of worker from Australia
A worker who has suffered a work injury and is receiving weekly payments must
give the Corporation details of any proposed absence from Australia that is to
be for a period of more than 28 days. This clause authorises the Corporation to
suspend or reduce weekly payments being made to a worker who is absent from
Australia if certain circumstances specified in the clause apply.
52—Reports of return to work etc
This clause places an obligation on an employer to notify the Corporation of a
worker's return to work. The Corporation must also be notified if there is a
change in the weekly earnings of, or a change in the type of work performed by,
a worker who is receiving weekly payments for partial incapacity. A worker who
has been receiving weekly payments for total incapacity must notify the
Corporation if he or she returns to work with an employer that is not the
employer from whose employment the injury arose.
Division 5—Redemptions
53—Redemptions—liabilities associated with weekly payments
This clause allows for the redemption of a liability to make weekly payments by
a capital payment to the worker. A redemption must be by agreement between the
worker and the Corporation. An agreement for the redemption of weekly payments
cannot be made unless the worker has received competent professional and
financial advice, and unless the Corporation has consulted with the relevant
employer, as required under the clause. There must also be certification from a
recognised health practitioner that the extent of the worker's incapacity
resulting from the work injury can be determined with a reasonable degree of
confidence.
For a seriously injured worker, this clause applies subject to any election made
by the worker under Part 5 Division 1.
54—Redemptions—liabilities associated with medical services
This clause allows for the redemption of a liability to make payments of a kind
referred to in clause 33 (that is, payments in relation to certain medical and
therapeutic services) by a capital payment to the worker. The liability may only
be redeemed if the worker has received competent professional advice and advice
from a recognised health practitioner about the future medical services he or
she will or is likely to require on account of the work injury and any related
surgery, treatment or condition. The clause does not apply in relation to
seriously injured workers.
Division 6—Permanent impairment—economic loss
55—Preliminary
This clause sets out a number of terms and references (or factors) for the
purpose of forming the basis of the calculation required to determine the lump
sum payment for loss of future earning capacity to an injured worker.
56—Lump sum payments—economic loss
This clause establishes an entitlement to a lump sum for loss of future earning
capacity for a worker (other than a seriously injured worker) who suffers a work
injury resulting in permanent impairment. The lump sum is determined according
to a formula set out in the clause. No entitlement arises under the clause if
the degree of whole person impairment from physical injury is less than 5% or in
relation to psychiatric injury, consequential mental harm or noise induced
hearing loss. The maximum amount payable under this provision will be
$350,000 (indexed), with the actual amount being determined according to the
degree of whole person impairment, the age of the worker, and the status of the
worker's employment as a full-time or part-time worker at the time of the
injury. A worker's degree of impairment is to be assessed in accordance with
Part 2 Division 5 (and the Impairment Assessment Guidelines). Only 1 claim may
be made in respect of any impairment or impairments that result from 1 or more
injuries (including consequential injuries) arising from the same trauma.
Division 7—Permanent impairment—non-economic loss
57—Prescribed sum
This clause provides that the prescribed sum for the purposes of Division 7 is
$472,000 (indexed). However, if a greater amount is prescribed by regulation for
the purposes of the definition, the prescribed sum is the greater amount.
58—Lump sum payments—non economic loss
This clause provides a worker who has suffered a work injury resulting in
permanent impairment with an entitlement to compensation for non-economic loss
by way of a lump sum. However, if a worker's degree of whole person impairment
from physical injury is less than 5%, there is no entitlement to compensation
under the clause. Further, there is no entitlement under the clause in relation
to psychiatric injury or consequential mental harm.
The lump sum to which a worker is entitled will be an amount that represents a
portion of the prescribed sum calculated in accordance with the regulations. The
regulations made for those purposes must provide for compensation that at least
satisfies the requirements of Schedule 8 taking into account the assessment of
whole person impairment.
A worker's degree of impairment is to be assessed in accordance with Part 2
Division 5 (and the Impairment Assessment Guidelines).
Only 1 claim may be made in respect of any impairment or impairments that result
from 1 or more injuries (including consequential injuries) arising from the same
trauma.
Division 8—Payments on death
59—Weekly payments
This clause provides an entitlement to compensation in the form of weekly
payments for spouses, domestic partners and dependent children of workers who
die as a result of work injuries. There is also an entitlement for a dependent
relative of a deceased worker who is not a spouse, domestic partner or child.
60—Review of weekly payments
This clause provides for review by the Corporation of weekly payments payable to
a person under Division 8. A review may be undertaken on the Corporation's own
initiative, but must be undertaken at the request of the employer or the person
to whom the weekly payments are payable.
61—Lump sums
This clause provides for the payment of compensation in the form of a lump sum
to spouses, domestic partners and dependent children of workers who die as a
result of work injuries.
62—Funeral benefits
A funeral benefit is payable under this clause where a worker dies as a result
of a work injury. The benefit is to be paid to the person who conducted the
funeral or to a person who has paid, or is liable to pay, the funeral expenses
of the deceased worker.
63—Counselling services
This clause provides an entitlement to compensation for the cost of approved
counselling services for family members of workers who die as the result of work
injuries.
Division 9—Rules as to liability
64—Incidence of liability
The Corporation is liable under this clause for the compensation that is payable
under Part 4. However, if a work injury arises from employment by a self-insured
employer, the self-insured employer is liable to make all payments of
compensation to which any person becomes entitled because of the injury.
This clause also makes further provision in relation to the liability of the
Corporation and employers with respect to compensation under the Act.
This clause requires the Corporation to pay compensation on behalf of an
employer that fails to make the payment as required under the Act. The
Corporation is then entitled to recover the amount of the payment plus an
administration fee from the employer as a debt.
65—Augmentation of weekly payment in consequence of delay
This clause makes provision for the payment of interest if a weekly payment is
not paid as and when required under the Act or there is a delay in the making of
a weekly payment pending the resolution of a dispute.
Division 10—Related matters
66—Rights of action and recovery against third parties
This clause deals with certain matters relating to rights of action and recovery
where a right of action exists (or would exist but for this clause) against a
person other than the employer for damages in respect of a work injury.
Subclause (7) sets out rules and requirements that apply where compensation is
paid or payable under the Act to a person who has received, or is entitled to,
damages from another person, and the person by whom the compensation under the
Act is paid or payable is entitled (under subclause (5) or (6)) to recover the
amount of compensation.
67—Prohibition of double recovery
This clause provides that compensation is not payable under the Act in respect
of an injury to the extent that compensation has been received in respect of the
same injury under the laws of another place.
68—Injuries arising from employment on ships
This clause provides that the amount of compensation payable in relation to a
work injury arising from employment on a ship is not subject to any limitation
imposed by the Merchant Shipping Act1894 of the United Kingdom.
69—Sporting injuries
Under subclause (1) of this clause, if a worker is employed solely to
participate as a contestant, or act as a referee or umpire, in a sporting or
athletic activity or contest, and remuneration is not payable under the contract
of employment except in respect of that employment, the worker is not entitled
to compensation for an injury arising out of or in the course of that
employment. This principle operates subject to exceptions specified in subclause
(2).
Part 5—Common law
Division 1—Preliminary
70—Preliminary
This clause deals with some preliminary matters in respect of Part 5, as
follows:
a reference to a worker's employer includes a reference to a person who is
vicariously liable for the acts of the employer and a person for whose acts the
employer is vicariously liable;
a reference to a percentage (or degree) of permanent impairment is a reference
to a percentage (or degree) of whole person impairment;
a reference to compensation payable under the Act includes a reference to
compensation that would be payable under the Act if a claim for that
compensation were duly made.
71—Application of Part in relation to damages and scope and limitation of
liability
This clause provides, in subclause (1), that Part 5 of the Act applies to an
award of damages in respect of a work injury to a worker, or the death of a
worker resulting from a work injury, if the injury is caused by the negligence
or other tort of the worker's employer and arises from employment.
That subclause operates subject to a further principle, specified in subclause
(2), that an employer is not liable to an award of damages in respect of a
psychiatric injury unless that injury is primarily caused by the negligence or
other tort of the worker's employer. Further, an employer is not liable to an
award of damages in respect of consequential mental harm.
Subclause (5) makes it clear that Part 5 applies to an award of damages in
respect of an injury caused by the negligence or other tort of the worker's
employer even though the damages are recovered in an action for breach of
contract or in another action based on the same act or omission of the employer
that would have founded an action for negligence or on account of another tort
The clause provides that a worker cannot commence proceedings in a court for
damages within the scope of subclause (1) unless or until an assessment of the
degree of permanent impairment of the worker has been undertaken under Part 2
Division 5.
An employer is not liable to an award of damages in respect of a work injury to
a worker or the death of a worker resulting from a work injury unless the
damages fall within the scope of subclause (1), (2) or (5) of the clause or the
damages constitute motor vehicle damages. A liability under subclause (1), (2)
or (5) does not arise unless a successful claim for compensation has been made
under Part 4 of the measure.
Further, an employer is not liable to an award of damages in respect of a work
injury to a worker or the death of a worker resulting from a work injury if the
employer is a body corporate and the worker is a director who has a defined
interest in the body corporate as well as being an employee of the employer.
72—No damages unless whole person impairment of at least 30%
Under clause 72, no damages may be awarded against an employer except in
circumstances that are consistent with the operation of Part 5 and unless the
injury results in a degree of permanent impairment of at least 30% or death.
73—Seriously injured workers—special provisions
This clause applies in relation to a seriously injured worker (if the seriously
injured worker has a right of action against the employer) and provides that—
the worker is not entitled in an action against an employer to damages in
respect of any treatment, care or support services; and
the worker is not entitled to both a redemption of a liability to make weekly
payments under Part 4 Division 5 and damages for future economic loss due to the
deprivation or impairment of earning capacity in an action against an employer;
and
the worker is not entitled in an action against an employer to damages for any
loss other than economic loss; and
the worker must elect to claim damages for future economic loss due to the
deprivation or impairment of earning capacity or to enter into an agreement
under Part 4 Division 5; and
the worker cannot commence an action for damages for future economic loss or
enter into an agreement under Part 4 Division 5 unless or until the election has
been made (and cannot make such an election unless he or she has received legal
advice about the consequences of the election).
74—General regulation of court awards
This clause provides that a court may not award damages to a person contrary to
Part 5.
Division 2—General principles
75—Effect of recovery of damages on compensation
Clause 75 deals with the situation where a worker or other person recovers
damages in respect of an injury from the employer and the relevant compensating
authority (that is, the Corporation or self-insured employer) is liable to pay
compensation under the Act in respect of the same injury.
In that situation, the person ceases to be entitled to any further compensation
under the Act in respect of the injury. Further, the amount of compensation
already paid is to be deducted from the damages and the person ceases to be
entitled to receive recovery/return to work services under the Act. This does
not include an entitlement of a seriously injured worker to receive services
under Part 3 (Early intervention, recovery and return to work) or to receive
compensation for medical and other expenses under Part 4 Division 2. Similarly,
if a person recovers damages as a dependant of a worker in respect of
proceedings in respect of the death of the worker, the relevant compensating
authority is not liable to pay compensation, or further compensation, in respect
of the death and the amount of any compensation already paid to the dependant
under Part 4 Division 8 in respect of the death of the worker is to be deducted
from the damages.
Similar principles apply in respect of a person's entitlement to compensation
under the Act (and the deduction of compensation already paid) if the person
recovers motor accident damages, or other damages, in respect of an injury under
the Act.
76—Retirement age
A court is required under this clause, when awarding damages for future economic
loss due to deprivation or impairment of earning capacity or loss of expectation
of financial support in a case where Part 5 applies, to disregard any earning
capacity of the injured worker after pension age (as defined in the Social
Security Act1991 of the Commonwealth for persons other than veterans).
77—Mitigation of damages
This clause requires a court that is assessing damages in a case where Part 5
applies to consider the steps that have been taken, and that could reasonably
have been or be taken by an injured worker, to mitigate the damages.
78—Payment of interest—limited statutory entitlement
This clause specifies a plaintiff's right to interest on damages in a case where
Part 5 applies. The clause provides that interest is not payable unless—
information that would enable a proper assessment of the plaintiff's claim has
been given to the defendant and the defendant has had a reasonable opportunity
to make an offer of settlement (where it would be appropriate to do so) in
respect of the plaintiff's full entitlement to all damages of any kind relevant
to the operation of this Act but has not made such an offer; or
the defendant has had a reasonable opportunity to make a revised offer of
settlement (where it would be appropriate to do so) in the light of further
information given by the plaintiff that would enable a proper assessment of the
plaintiff's full entitlement to all damages of any kind relevant to the
operation of this Act but has not made such an offer; or
the defendant has made an offer of settlement, the amount of all damages of any
kind awarded by the court (without the addition of any interest) is more than
20% higher than the highest amount offered by the defendant and the highest
amount is unreasonable having regard to the information available to the
defendant when the offer was made.
79—Contributory negligence
This clause provides that the common law and enacted law in relation to
contributory negligence apply to an award of damages under Part 5.
80—Defence of voluntary assumption of risk
Although the defence of voluntary assumption of risk is not available in an
action for the award of damages where Part 5 applies, if that defence would
otherwise have been available, the amount of any damages is to be reduced to an
extent that is just and equitable on the presumption that the injured or
deceased person was negligent in failing to take sufficient care for his or her
own safety.
81—Exemplary or punitive damages
Exemplary and punitive damages are not available in an award of damages to which
Part 5 applies.
82—Court to apportion damages etc
This clause provides that if a judgment is obtained for payment of damages to
which Part 5 applies as well as for other damages, the court is required, as
part of the judgment, to declare what portion of the sum awarded by the judgment
is damages to which Part 5 applies.
83—Abolition of doctrine of common employment
An employer who is sued in respect of personal injury caused by the negligence
of a person employed by the employer cannot rely on the defence that the
employed person was, at the time of the injury, in common employment with the
injured person.
84—No damages for nervous shock injury to non-workers
This clause prohibits the awarding of damages for pure mental harm against an
employer in respect of the death of or injury to a worker where Part 5 applies
if the pure mental harm arises wholly or partly from mental or nervous shock in
connection with the death or injury. This does not apply if the pure mental harm
is in itself a work injury under the Act.
Division 3—Procedural matters and costs
85—Compulsory mediation
Where an action for damages to which Part 5 applies is brought before a court, a
pre-trial mediation must be conducted before the matter proceeds to trial. The
clause sets out certain requirements in relation to compulsory mediation.
86—Costs
This clause applies in relation to an action for damages brought under Part 5 if
the proceedings are settled or judgment is given or the proceedings are
otherwise brought to an end. A legal practitioner acting on behalf of a party is
required to declare the legal costs that he or she has charged, or intends to
charge, the party.
Division 4—Choice of law
87—The applicable substantive law for work injury claims
This clause provides that where there is an entitlement to compensation under
the statutory workers compensation scheme of a State in respect of an injury to
a worker, the substantive law of that State is the substantive law that governs
whether or not a claim for damages in respect of the injury can be made and, if
so, the determination of the claim. However, if compensation is payable in
respect of the injury under the statutory workers compensation scheme of more
than one State, Division 4 of Part 5 (dealing with choice of law) does not
apply.
88—Claims to which Division applies
Division 4 of Part 5 applies to a claim for damages or recovery of contribution—
brought against a worker's employer in respect of an injury caused by the
negligence or other tort (including breach of statutory duty) of the employer or
a breach of contract by the employer; or
brought against a person other than a worker's employer in respect of an injury
if—
the worker's employment is connected with this State; and
the negligence or other tort or the breach of contract on which the claim is
founded occurred in this State.
89—What constitutes injury and employment
This clause assists in the interpretation of the terms injury, employer and worker,
and the determination of what constitutes employment, for the purposes of the
Division.
90—Claim in respect of death included
This clause provides that, for the purposes of the Division, a claim for damages
in respect of death resulting from an injury is to be considered as a claim for
damages in respect of the injury.
91—Meaning of substantive law
This clause provides definitions of a State's legislation about damages for a
work related injury and substantive law.
92—Availability of action in another State not relevant
This clause provides that it does not matter for the purposes of the Division
if, under the substantive law of another State—
the nature of the circumstances is such that they would not have given rise to a
cause of action had they occurred in that State; or
the circumstances on which the claim is based do not give rise to a cause of
action.
Division 5—Related matters
93—Ability of Corporation to conduct and settle proceedings
Under this clause , if a proceeding is brought for damages, and Part 5 applies,
the proceeding must be against the employer and not against the Corporation.
Despite this, the Corporation may (if the employer is not a self-insured
employer) conduct the proceedings for the employer and settle any matter that is
the subject of the proceedings.
94—Interaction with Civil Liability Act1936
The Act will prevail to the extent of any inconsistency with the Civil
Liability Act1936 but does not otherwise limit the operation of the Civil
Liability Act1936 in respect of a cause of action for damages under Part 5.
Part 6—Dispute resolution
Division 1—Preliminary
95—Specific object
This clause makes it clear that the vesting of jurisdiction in the Tribunal
under this Part is intended to achieve an outcome in any proceedings that is
based on quick and efficient decision making that resolves disputes
expeditiously and fairly.
96—Interpretation
This clause provides definitions of several terms used in the Part.
97—Reviewable decisions
This clause identifies the types of decisions that are reviewable.
Division 2—Conferral of jurisdiction
98—Conferral of jurisdiction
This clause confers jurisdiction on the proposed new South Australian Employment
Tribunal to deal with a reviewable decision.
Division 3—Institution of proceedings
99—Application to Tribunal
This clause establishes that a person who has a direct interest in a reviewable
decision may commence proceedings for a review of the reviewable decision by the
Tribunal.
100—Time for making application
This clause sets a time limit of 1 month (subject to extension) within which an
application may be made to the Tribunal after the applicant receives notice of
the reviewable decision.
101—Notice to be given by Registrar
Provision is made for the Registrar of the Tribunal to send copies of the
application to the other parties to the proceedings.
Division 4—Initial reconsideration
102—Initial reconsideration
This clause establishes a scheme for the reconsideration of the decision to
which the application relates by the relevant compensating authority.
The relevant compensating authority must (on completion of the reconsideration)
confirm or vary the decision to conform with the result of the reconsideration
and give the Registrar written notice of the result of the reconsideration and
whether the compensating authority has confirmed or varied the decision as a
result of the reconsideration and, if the decision has been varied, how the
decision has been varied.
The clause provides that the reconsideration is not to be regarded as a
redetermination of a claim under the other provisions of this Act and that a
decision on a claim by the Tribunal itself, made in the exercise of the
Tribunal's special jurisdiction to expedite decisions on claims, is not liable
to reconsideration under this section and if such a decision is the subject of
an application under this Part, the matter will immediately proceed to be
reviewed under Part 3 of the proposed South Australian Employment Tribunal
Act2014.
103—Proceedings on application
This clause provides that if the relevant compensating authority confirms a
decision on reconsideration, or a party to the dispute expresses dissatisfaction
(in accordance with the rules) with the variation of a decision on
reconsideration, the matter will be dealt with under Part 3 of the proposed South
Australian Employment Tribunal Act2014. The reconsideration of a matter
under this Division should not unduly delay proceedings before the Tribunal and
the Tribunal must, so far as is reasonably practicable, undertake its processes
pending the outcome of the reconsideration.
Division 5—Related matters—Tribunal proceedings
104—Pre-hearing conference
This clause provides that before the Tribunal proceeds with the hearing of a
matter, a compulsory conference between the parties must be held under the
proposed South Australian Employment Tribunal Act2014. Although the
Tribunal must not dispense with a conference under that Act, the member of the
Tribunal presiding at the conference may close the conference at any time if it
appears to him or her that the matter should immediately be referred to the
Tribunal for hearing and determination.
105—Representation
This clause makes it clear that a party to proceedings before the Tribunal is
entitled, without leave, to be represented by an officer or employee of an
industrial association acting in the course of employment with that industrial
association.
106—Costs
This clause sets out the nature and extent of the entitlement of a party (other
than the relevant compensating authority) to costs, subject to the Act and the
regulations.
The clause also gives the Tribunal power to decline to make an award of costs in
favour of a party and make an award of costs against the party or reduce the
amount of the award to which the party would otherwise have been entitled, if
the Tribunal is of the opinion that the party acted unreasonably in various
respects, or frivolously or vexatiously in bringing or in relation to the
conduct of proceedings before the Tribunal.
The clause further provides that an award of legal costs cannot exceed 85% of
the amount that would be allowable under the relevant Supreme Court scale if the
proceedings were in the Supreme Court.
The clause also establishes that if the amount of permanent impairment
compensation is disputed by a worker and the amount the Tribunal awards is less
than, or the same as, or less than 10% above, an amount offered by the relevant
compensating authority to settle the matter before the matter proceeds to a
hearing before the Tribunal, the worker is not entitled to costs under the
clause.
107—Costs liability of representatives
This clause gives the Tribunal power to make various orders for the payment or
repayment of costs by a professional representative that has caused costs to be
incurred improperly or without reasonable cause or to be wasted by undue delay
or negligence or other misconduct or default.
108—Recovery of costs of representation
This clause makes it an offence for a representative of a party to proceedings
before the Tribunal to charge or seek to recover for work involved in, or
associated with, that representation an amount exceeding the amount allowable
under a scale fixed by regulation.
109—Ministerial intervention
The power for the Minister to intervene in proceedings before the Tribunal or
the Supreme Court under this Part, if satisfied that intervention is justified
in the public interest, is established.
110—Power to amend or set aside decisions or orders
This clause enables the Tribunal to amend or set aside a decision or order of
the Tribunal.
111—Regulations concerning medical evidence
This clause provides for the making of regulations in relation to the provision
of reports and expert medical evidence before the Tribunal and the disclosure of
medical reports.
112—Payment to child
This clause makes provision for the order of payments of money to a child.
Part 7—Special jurisdiction to expedite decisions
113—Special jurisdiction
A worker or employer who believes there has been undue delay in deciding a claim
or other matter affecting the worker or employer (being a claim or matter that
would, once determined or decided, constitute a reviewable decision) may apply
to the Tribunal, in the manner and form prescribed by regulation, for expedited
determination of the matter.
114—Timing of application
An application for expedited determination of a matter cannot be made until at
least 10 business days after the day the matter was placed before the relevant
decision-maker.
115—Powers of Tribunal on application
This clause sets out the powers of the Tribunal on an application for expedited
determination of a matter.
116—Costs
This clause gives power for regulations to be made about the costs of
proceedings under this Part.
Part 8—Independent medical advice
Division 1—Interpretation
117—Interpretation
This clause defines the term medical question for the purposes of the
Part.
Division 2—Appointment of independent medical advisers
118—Constitution of board
This clause constitutes the Independent Medical Advisory Board (or IMAB).
It provides that the Board will be constituted by medical practitioners
appointed by the Minister on the recommendation of a selection committee
established under this clause.
119—Independent medical advisers
A member of IMAB will be called an independent medical adviser for the
purposes of this Act.
120—Related appointment provisions
This clause provides that the terms and conditions for the appointment of an
independent medical adviser is to be determined by the Minister. The clause
specifies the circumstances in which the office of a person appointed to be an
independent medical adviser becomes vacant.
Division 3—Referrals
121—Referral by Tribunal or court
This clause provides for the referral, by the Tribunal or a court, of any
question or questions arising in proceedings to 1 or more independent medical
advisers specified by the Tribunal or court for inquiry and report.
122—Powers and procedures on a referral
This clause sets out the procedures to be followed by an independent medical
adviser to whom a medical question has been referred under this Division. It
also gives the Tribunal or a court the power to make certain orders. Proposed
subclause (6) also specifies a number of principles to be taken into account if
a medical question relates to any matter that is relevant to the assessment of
whole person impairment (including as to whether an impairment is permanent).
Division 4—Related matters
123—Provision of report
Proposed section 123 sets out that a report is to be prepared by an independent
medical adviser at the conclusion of his or her consideration of a medical
question and that the report is to be in a form specified by the rules of the
Tribunal or court and is to set out a number of specified matters. The clause
further provides for the admission of the report as evidence in proceedings.
124—Competency to give evidence
This clause provides that an independent medical adviser is competent to give
evidence as to any matter in a report furnished by the independent medical
adviser (and any other relevant matter, as appropriate).
125—Further referrals
This clause provides that the Tribunal or a court may, if it thinks fit, refer
any matter (in the nature of a medical question or in connection with a medical
question) back to an independent medical adviser who has furnished a report to
the Tribunal or court for further report to the Tribunal or court (and then this
Division will apply in relation to the reference as if it were a new reference
of a medical question).
126—Staff and facilities
This clause establishes the basis of a scheme to provide staff or facilities
that may be required to support IMAB or independent medical advisers in the
performance of their functions under this Part.
127—Recovery of costs
This clause ensures that the costs associated with IMAB, independent medical
advisers and any staff or facilities provided under this Part are payable out of
the Compensation Fund.
Part 9—Registration and funding
Division 1—Registration of employers
128—Registration of employers
The scheme under the current Act for the registration of employers and the
imposition and recovery of premiums is essentially re-enacted as Part 9 of this
Act. This clause is the principal section with respect to the registration of
the employers for the purposes of the Act.
129—Self-insured employers
The scheme under which an employer or group of employers may apply for
registration as a self-insured employer or as a group of self-insured employers
is to continue. A new aspect of this scheme will be that it will be a condition
of registration as a self-insured employer that the employer must adopt and
apply the service standards set out in Schedule 5. Another change is that the
maximum period for a renewal of registration as a self-insured employer will be
5 years under the new Act (rather than the current period of 3 years). New
provisions will exclude foreign companies that are holding companies from being
a member of a group of self-insured employers. A specific provision allowing a
self-insured employer to cease being such an employer under an agreement between
the Corporation and the employer is also to be included under the new Act.
130—Crown and certain agencies to be self-insured employers
This clause continues the current scheme for the Crown and agencies and
instrumentalities of the Crown to be self-insured employers.
131—Applications for registration
This clause continues the current scheme for registration.
132—Changes in details for registration
This clause continues the current scheme for employers to notify the Corporation
if there is any change in any details or information relevant to a registration
under the Act.
133—Ministerial appeal on decisions relating to self-insured employers
This clause continues the current scheme under the Act under which certain
decisions of the Corporation with respect to the registration of an employer are
reviewable by the Minister.
Division 2—Delegation to self-insured employers
134—Delegation to self-insured employers
This clause continues the current scheme under which the powers and discretions
of the Corporation under specified provisions of the Act are delegated to a
self-insured employer.
Division 3—Compensation Fund
135—Compensation Fund
The Compensation Fund will continue to be maintained by the Corporation. One
change to the provision will be to allow a contribution to be made towards
advocacy services for the benefit of injured workers (as determined by the
Minister from time to time after consultation with the Corporation).
Division 4—Premiums
Subdivision 1—Preliminary
136—Interpretation
This clause is in the same terms as section 65 of the current Act.
137—Average premium rate ceiling
As a general rule, the Corporation will be required to achieve an average
premium rate that does not exceed 2%.
Subdivision 2—Premiums (terms and conditions)
138—Premiums (terms and conditions)
This clause continues the scheme under which the Corporation establishes a set
of terms and conditions that apply to employers in relation to the calculation,
imposition and payment of premiums under the Act. These provisions will now be
called 'RTWSA premium provisions'. Different sets of provisions will continue to
be able to be set in relation to different categories of employers. These
provisions underpin the arrangements for the purposes of the premiums that apply
under the Act.
Subdivision 3—Premiums (general principles)
139—Liability to pay premiums
This clause sets out the requirement for employers to pay premiums under the
Act. An employer who is a self-insured employer, exempt from the requirement to
be registered, or exempt under the regulations, is not required to pay a premium
under this Division.
140—Employer categories
This clause continues the scheme for the division of workers into various
categories for the purposes of this Part. The categories will be determined by
the Corporation (rather than prescribed by the regulations).
141—Classes of industry
This clause continues the scheme that allows the Corporation to divide the
industries carried on in the State into various classes. One change that has
been made is to provide specifically that if an employer employs workers at a
workplace for the purpose of supporting a predominant class of industry carried
on at 1 or more other workplaces, that predominant class of industry will, if
the Corporation so determines, apply in relation to those workers at that
workplace.
142—Industry rates and base premiums
This clause continues the scheme for the fixing of industry premium rates.
Section 70(3) and (5) of the current Act, relating to fixing a percentage rate
not exceeding 7.5%, will not apply under the new provisions.
Subdivision 4—Premiums (calculation and application)
143—Premium orders
This clause continues the scheme for publishing premium orders.
144—Premium stages
This clause continues the scheme for the imposition and payment of premiums in
stages.
145—Grouping provisions
This clause continues the scheme for the grouping of employers for the
determination and payment of premiums under this Division.
Division 5—Self-insured employers—fees
146—Self-insured employers—fees
This clause continues the scheme for the payment of a fee by a self-insured
employer.
Division 6—Remissions and supplementary payments
147—Remissions and supplementary payments
This clause continues the scheme for the remission of a premium or fee otherwise
payable by an employer or the imposition of supplementary payments.
Division 7—Administration of premiums/fees scheme
148—Interpretation
149—Provision of information (initial calculations)
150—Provision of information (on-going requirements)
151—Revised estimates or determinations
152—Further adjustments
153—Deferred payment
154—Recovery on default
155—Penalty for late payment
156—Exercise of adjustment powers
157—Review
158—Payments to be made to Corporation
159—GST
160—Transfer of business
161—Reasonable mistake about application of Act
These clauses set out various ancillary or related provisions associated with
the calculation and payment of premiums and other relevant amounts. They are
based on the provisions of the current Act.
Division 8—Miscellaneous
162—Separate accounts
This clause is similar to section 73 of the current Act, except that 'secondary'
injuries will no longer be separately listed in the account of an employer.
163—Liability to keep accounts
164—Person ceasing to be an employer
165—Certificate of registration
These are also ancillary provisions that replicate provisions from the current
Act.
166—Insurance of registered employers against other liabilities
This clause is based on section 105 of the current Act so that an employer
registered under the Act, or who is not required to be registered under the Act,
is insured by the Corporation, subject to terms and conditions prescribed by the
regulations, against any liability that may arise apart from this Act in respect
of a work injury arising from employment (being employment to which the Act
applies) by the employer. The basic insurance scheme does not extend to a
self-insured employer and will not extend to a liability excluded by the
regulations.
167—Corporation as insurer of last resort
This clause is based on section 50 of the current Act so that the Corporation
may undertake the liabilities of a self-insured employer in certain
circumstances (and will do so if the employer becomes insolvent or ceases to
carry on business in the State and does not make adequate provision for relevant
liabilities under the Act).
Part 10—Scheme adjustment mechanisms
168—Preliminary
This clause sets out the definitions and concepts that need to be included or
explained for the purposes of this Part.
169—Scheme adjustment/review events
A scheme/adjustment review event will occur if, in respect of each of 2
consecutive financial years—
the Corporation has achieved a funding level of at least 100% at a probability
of sufficiency of 75%; and
the Corporation has achieved a profit from its insurance operations,
and an actuary has confirmed the ongoing viability of the scheme during a
declared scheme bonus period.
If such an event occurs, a payment will be made into a special account that is
to be established to assist certain categories of injured workers and the
Corporation will apply an equal amount so as to achieve a reduction in the
premiums paid by employers under the Act. However, this is subject to the
qualification that if such a course of action would result in the average
premium rate falling below 1.25%, then the Minister must instead initiate a
review of the scheme established by the Act.
170—Scheme funding/review events
This clause will require a review of the scheme established by the Act if, in
respect of each of 2 consecutive financial years, the Corporation has been
operating at a funding level below 90% at a probability of sufficiency of 75%.
Part 11—The Minister's Advisory Committee
171—Advisory Committee
This clause establishes the Minister's Advisory Committee and provides
for its membership.
172—Functions of Advisory Committee
This clause sets out the functions of the Minister's Advisory Committee,
which include the investigation and provision of advice about any matter
relating to early intervention, recovery, return to work or compensation with
respect to injured workers.
173—Proceedings etc of Advisory Committee
This clause sets out the proceedings in relation to Advisory Committee meetings.
174—Related provisions
It will be an offence for members of the Advisory Committee to divulge
information without the approval of the Committee that is commercially
sensitive, private, or that the Committee has classified as confidential.
This clause also makes provision in relation to committee members' duties under
the Public Sector (Honesty and Accountability) Act1995 by providing that
they will not be taken to have an interest in a matter if they only have an
interest that is shared in common with employers generally or employees
generally, or a substantial section of employers or employees.
Part 12—Miscellaneous
175—Extension of the application of Act to self-employed persons
This clause enables the Corporation, on the application of a person who is
self-employed, to extend to that person the protection of the Act (or of
specified parts of this Act), subject to conditions and limitations determined
by the Corporation.
176—Agreements with LSS Authority
The proposed section provides a scheme for the making of agreements between a
prescribed authority and the LSS Authority for the provision of services to
persons who have suffered work injuries and who, in the opinion of the
prescribed authority, would benefit from participating in certain aspects of the
Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act2013 relating
to treatment, care and support needs and in having other services (whether under
that Act or this Act) provided by the LSS Authority.
177—Payment not to constitute an admission of liability
This clause makes it clear that a payment by the Corporation or an employer to a
worker does not constitute an admission of liability or estop a subsequent
denial of liability.
178—Employer may request progress report
This clause establishes that an employer may request (from the Corporation) the
provision of a report on the medical progress being made by a worker and the
worker's capacity for work.
179—Copies of medical reports
This clause provides that the Corporation must, within 7 days after receiving a
request from a worker's employer, provide the employer with copies of reports in
the Corporation's possession prepared by health practitioners and relevant to
the worker's medical condition, the worker's progress in recovery, or the extent
of the worker's capacity for work.
180—Worker's right of access to claims file
This clause sets out the nature and extent of the right of a worker to access
copies of documentary material relevant to a claim by the worker and the right
of a worker to inspect all non-documentary material in the possession of the
Corporation or a delegate of the Corporation (subject to certain exceptions).
The clause requires the worker to return the material if the Corporation or a
delegate of the Corporation mistakenly provides material to a worker to which
the worker is not entitled.
181—Medical examination at request of employer
This clause provides that the employer of a worker who has made a claim under
the Act may require the Corporation to have the worker submit to an examination
by a recognised health practitioner nominated by the Corporation.
182—Worker to be supplied with copy of medical report
A copy of a report obtained for the purposes of the Act by the Corporation or an
employer concerning findings made, or the opinions formed, by a health
practitioner on the examination of a worker, must be sent to the worker.
183—Powers of entry and inspection
This clause sets out various powers of entry, inspection and seizure of
authorised officers for the purposes of the Act.
184—Inspection of place of employment by recovery or return to work adviser
The proposed section allows for the inspection of the place of employment of an
injured person by a designated adviser provided the power to inspect is
exercised so as to avoid any unnecessary disruption of, or interference with,
the performance of work at a place of employment.
185—Confidentiality to be maintained
Subject to the disclosure of specified matters outlined in proposed subsection
(3), this clause makes it an offence for a person to disclose information if the
person obtained the information in the course of carrying out functions in, or
related to, the administration, operation or enforcement of this Act and the
information is about commercial or trading operations, the physical or mental
condition, or the personal circumstances or affairs, of a worker or other person
or information provided in a return or in response to a request for information
under this Act.
186—Confidentiality—employers
Except as specified, a registered employer or a person employed by a registered
employer must not disclose information about the physical or mental condition of
a worker.
187—Employer information
This clause provides for the disclosure of certain specified matters in relation
to a registered employer by the Corporation.
188—Injuries that develop gradually
This clause makes specific provision for injuries that develop gradually and for
claims in respect of noise induced hearing loss. The clause also enables the
Corporation to require employers to carry out tests on classes of workers
determined by the Corporation. Furthermore, if it is established that a worker
was, at the time of undertaking employment with the employer, suffering from a
particular injury, the clause establishes a scheme by which a self-insured
employer may recover a contribution towards an amount of compensation from
another self-insured employer from whose employment the injury arose or if there
is no such self-insured employer—the Corporation.
189—Certain payments not to affect benefits under this Act
This clause established that the payment of certain types of compensation under
the Act must not be reduced or otherwise affected by an exgratia payment,
an accident insurance payment or a payment or benefit of a class prescribed by
regulation for the purposes of this section.
190—No contribution from workers
The proposed section ensures that the liability of an employer under this Act
must not be deducted from the wages of a worker and that an employer must not
discriminate against a worker on the ground that the employer is liable to pay
any sum under this Act to or in relation to the worker.
191—No contracting out
Proposed subsection (1) ensures that the Act applies despite any contract to the
contrary (subject to the matters set out in proposed subsection (2)).
192—Non-assignability of benefits
This clause provides that compensation is not capable of being assigned, charged
or attached and does not pass to any other person.
193—Payments if worker in prison
This clause provides for the suspension of weekly payments to a person who is
convicted of an offence and committed to prison for the period of imprisonment
subject to the Corporation determining that they should be paid to the
dependents of the prisoner.
194—Service of documents
This clause provides for the service of documents under the Act.
195—Service of documents on Corporation
This clause sets out the requirements for the effective service of documents on
the Corporation.
196—Dishonesty
The proposed section makes it an offence to behave dishonestly in relation to a
number of specified matters. The clause also ensures that where a court convicts
a person of an offence against the proposed section or makes a finding of guilt,
the court must, on application by the Corporation or a self-insured employer,
order the person who committed the offence to make good any loss to the
applicant as a result of the offence and reimburse costs incurred by the
applicant in investigating and prosecuting the offence.
197—Evidence
This clause provides for certain evidentiary matters for the purpose of legal
proceedings under the Act.
198—Offences
This clause creates an offence provision in respect of the requirement to comply
with the Act.
199—Expiation fees
The proposed section provides for the fixing of expiation fees, by regulation,
for alleged offences against the Act.
200—Right of intervention
The clause creates a right of intervention for the Corporation in respect of
proceedings under the Act before the Tribunal or certain proceedings before a
court.
201—Recovery of payments
This clause provides for the recovery (as a debt) from a worker, an employer or
any other person any payment of compensation or other amount to which the
worker, employer or other person is not entitled. The recovery extends to a
situation where it is correcting an error, mistake or oversight, or revising an
assessment, previously made by the Corporation under the Act.
202—Regulations
This clause provides a regulation making power.
203—Review of Act
The proposed section provides for the conduct of a review into the Act and its
administration and operation on the expiry of 3 years from its commencement and
for a report that forms the basis of the review to be laid before both Houses of
Parliament.
The review must include an assessment of the extent to which the scheme
established by this Act and the dispute resolution processes under this Act and
the South Australian Employment Tribunal Act2014 have achieved a
reduction in the number of disputed matters and a decrease in the time taken to
resolve disputes and the extent to which there has been an improvement in the
determination or resolution of medical questions arising under this Act
(especially when compared to the scheme and processes applying under the
repealed Act).
Schedule 1—Presumptive employment
1—Presumptive employment
This clause establishes the concept of the Crown as the presumptive employer for
persons of a prescribed class who voluntarily perform work of a prescribed class
that is of benefit to the State.
Schedule 2—Injuries presumed to arise from general employment
This Schedule contains a list of injuries presumed to arise from general
employment.
Schedule 3—Injuries presumed to arise from employment as a firefighter
1—Substantive provisions
This Schedule contains a list of injuries presumed to arise from employment as a
firefighter.
Schedule 4—Adjacent areas
1—Interpretation
2—Adjacent areas
This Schedule establishes the adjacent area for a State or Territory.
Schedule 5—Statement of service standards
Part 1—Introduction
1—Aim of these standards
2—Interpretation
3—Spirit of these standards
This Schedule sets out a statement of service standards to be met by the
Corporation in its relationship with workers and employers
Part 2—The standards
4—The standards
This clause sets out the individual standards to be observed by the Corporation.
Part 3—Complaints about breaches of these standards
5—Overview
6—Procedures for the Corporation to deal with a complaint
This clause sets out the various procedures to be followed by the Corporation
following its receipt of a complaint concerning the Corporation's compliance
with the service standards.
7—Remedies
This clause sets out the remedies available following a finding that the
Corporation has breached any of the standards.
Part 4—Wider issues
8—Wider issues
This clause provides that the Corporation will consider and address the wider
implications associated with the operation and effectiveness of the standards
and any complaints that arise under them.
Schedule 6—Age factor
This Schedule inserts a table of values that determine the age factor. The age
factor forms part of the formula that determines the lump sum payment in clause
56 of the Act.
Schedule 7—Prescribed sum—economic loss
This Schedule inserts a table that determines the prescribed sum according to
the degree of whole person impairment for the purposes of the formula used to
determine the lump sum payment in clause 56 of the Act.
Schedule 8—Minimum amounts of compensation according to degree of impairment
under regulations
This Schedule provides for the minimum amounts of compensation payable according
to the degree of whole person impairment.
Schedule 9—Repeal, amendments and transitional provisions
Part 1—Preliminary
1—Amendment provisions
This clause is formal.
Part 2—Repeal
2—Repeal
This clause repeals the Workers Rehabilitation and Compensation Act1986.
Part 3—Amendment of Civil Liability Act1936
3—Amendment of section 4—Application of Act
This clause makes changes to substitute a reference to the Workers
Rehabilitation and Compensation Act1986 with a reference to Part 4 of the Return
to Work Act2014.
Part 4—Amendment of Judicial Administration (Auxiliary Appointments and
Powers) Act1988
4—Amendment of section 2—Interpretation
This clause deletes the reference to 'the office of Deputy President of the
Workers Compensation Tribunal' from the definition of judicial office in
section 2 of the Judicial Administration (Auxiliary Appointments and Powers)
Act1988 and substitutes a reference to the office of Deputy President of the
South Australian Employment Tribunal.
Part 5—Amendment of Motor Vehicle Accidents (Lifetime Support Scheme) Act2013
5—Amendment of section 24—Eligibility for participation in Scheme
This clause substitutes the reference to a compensable injury under the Workers
Rehabilitation and Compensation Act1986 with a reference to a work injury
under the Return to Work Act2014 (other than to such extent as applies
under section 55) for the purposes of determining the coverage of the Motor
Vehicle Accidents (Lifetime Support Scheme) Act2013.
6—Amendment of section 55—Agreements with prescribed authorities
This clause makes further consequential changes to the principal Act in line
with the substitution of references to the Workers Rehabilitation and
Compensation Act1986 with the Return to Work Act2014.
Part 6—Amendment of Supreme Court Act1935
7—Amendment of section 39—Vexatious proceedings
This clause deletes the reference to the Workers Compensation Tribunal in the
definition of prescribed court for the purposes of section 39 of the Supreme
Court Act1935.
Part 7—Amendment of WorkCover Corporation Act1994
8—Amendment of long title
9—Amendment of section 1—Short title
10—Amendment of section 3—Interpretation
11—Amendment of section 4—Continuation of Corporation
12—Amendment of section 7—Allowances and expenses
13—Amendment of section 12—Primary objects
14—Amendment of section 13—Functions
15—Amendment of section 14—Powers
16—Amendment of section 14A—Direction of Minister
17—Amendment of section 16—Committees
18—Amendment of section 17A—Corporation's charter
19—Amendment of section 20—Annual reports
20—Amendment of section 21—Chief Executive Officer
21—Amendment of section 26—Protection of special names
Consequential amendments are made to reflect the passage of the Return to
Work Act2014 and the repeal of the Workers Rehabilitation and
Compensation Act1986.
The amendments, where necessary, substitute references to the WorkCover
Corporation of South Australia with the Return to Work Corporation of South
Australia (ReturnToWorkSA).
Amendments to the Return to Work Corporation of South Australia Act1994 are
made, where appropriate, to support the emphasis on early intervention, recovery
and return to work in the Return to Work Act 2014.
22—Insertion of section 27A
This clause inserts a section that applies provisions of the Public
Corporations Act1993 to the Corporation with respect to tax equivalence
payments, subject to specified modifications.
Part 8—Amendment of Work Health and Safety Act2012
23—Amendment of section 4—Definitions
24—Amendment of Schedule 2—Local tripartite consultation arrangements
25—Amendment of Schedule 5—Provisions of local application
These clauses contain a number of consequential amendments and include changes
that substitute references to the Workers Rehabilitation and Compensation
Act1986 and the WorkCover Corporation of South Australia with references to
the Return to Work Act2014 and the Return to Work Corporation of South
Australia (ReturnToWorkSA) respectively. The contribution payment associated
with the administration of the Act under clause 3 of this Schedule is to be
combined with the amount payable under clause 2.
Part 9—Transitional provisions
Division 1—Interpretation
26—Interpretation
This clause provides definitions of a number of terms used in Part 9. The designated
day is a day appointed by proclamation as the designated day for the
purposes of the provision in which the term is used. This clause also provides
that a reference in Part 9 to the Corporation in a prescribed clause will be
taken to include a reference to a self-insured employer.
Division 2—CPI adjustment
27—CPI adjustment
This clause, which will come into operation on 1 January 2015, makes provision
for the indexation of sums of money fixed by the Act at the time of enactment
that are followed by the word '(indexed)'. The provisions of this clause
providing for indexation apply to a sum fixed by a provision that has not come
into operation on 1 January 2015 so that the sum as adjusted will apply when the
provision comes into operation.
Division 3—Application of Act
28—General provision
Clause 28, which is subject to the other provisions of Part 9, deals in general
terms with the application of the Act and provides that the Act applies to—
an injury that is attributable to a trauma that occurred before the designated
day and that is a compensable injury under the repealed Act (an existing
injury); and
an injury that is attributable to a trauma that occurred on or after the
designated day (a new injury).
If an injury is partially attributable to a trauma that occurred before the
designated day and partially attributable to a trauma that occurred on or after
the designated day, the injury will be taken to be a new injury.
29—Connection with employment
Under this clause, although sections 30 and 30A of the repealed Act will apply
for the purposes of determining whether an existing injury is compensable,
section 7(3) of the Act will extend to an injury that is, or results from, the
aggravation, acceleration, exacerbation, deterioration or recurrence of a prior
injury if the prior injury is wholly or partially attributable to a trauma that
occurred before the designated day and the later injury is wholly or partially
attributable to a trauma that occurred on or after that day.
30—Notice of injury
If a worker has given a notice of injury under section 51 of the repealed Act,
the notice will be taken under this clause to be a notice under section 16 of
the proposed Act.
31—Employer's duty to provide work
This clause makes it clear that section 18(3) of the Act applies to a worker who
has been incapacitated for work before the designated day.
32—Recovery and return to work
This clause continues rehabilitation programs and rehabilitation and return to
work plans in force under the repealed Act immediately before the designated
day. The latter are to be taken to be recovery/return to work plans under the
proposed Act. A person who held an appointment as a co-ordinator under the
repealed Act immediately before the designated day will be taken to be an
accredited return to work co-ordinator under the proposed Act.
33—Seriously injured workers
If a person's degree of whole person impairment has been assessed as 30% or more
under the repealed Act, he or she will be taken to be a seriously injured worker
under the proposed Act. The Corporation may also determine that a worker who has
an existing injury will be taken to be a seriously injured worker for the
purposes of the Act.
34—Medical expenses
Under this clause, the continuous period of 12 months referred to in subclause
(20) of clause 33 (that is, the period, where there has been no entitlement to
weekly payments, at the end of which an entitlement to compensation under clause
33 comes to an end (subject to subclause (21)) will, in respect of an existing
injury, be a period of 12 months that runs from the designated day or that
commences on or after the designated day.
35—Provisional liability for medical expenses
This clause provides that a right of set off under section 32A(8) of the
repealed Act may be exercised in relation to a right to the payment of
compensation under the proposed Act.
36—Weekly payments for workers
This clause sets out the principles according to which a worker who is
incapacitated for work in respect of an existing injury during the period
beginning on the designated day and ending 104 weeks after the designated day is
entitled to weekly payments in respect of the incapacity. It is made clear in
this clause that a worker has no entitlement to weekly payments under the
proposed Act or the repealed Act in respect of an existing injury after the end
of the second transitional period (that is, the period of 52 weeks beginning
after the end of the period of 52 weeks from the designated day). This does not
apply in relation to a seriously injured worker.
37—Federal minimum wage safety net
This clause extends the minimum wage safety net provided by clause 42 to the
amount of compensation payable under Part 4 Division 4 Subdivision 2 of the Act
on account of the operation of transitional provisions.
38—Management of transitional arrangements for income support
This clause authorises the Corporation to establish a scheme to provide for the
transition from making weekly payments under the repealed Act to making weekly
payments in accordance with the transitional provisions and more generally.
39—Retirement age
It is made clear by this clause that clause 44 of the Act (Termination of weekly
payments on retiring age) extends to weekly payments being paid to a worker
under the transitional provisions.
40—Discontinuance of weekly payments
The provision of the Act allowing for suspension of a decision to reduce or
discontinue weekly payments on the application by the worker for review of the
decision applies under this clause to a notice of a decision under section 36 of
the repealed Act. This does not apply if the worker has lodged a notice of
dispute in relation to the decision before the designated day. Subclauses (2)
and (3) of this clause deal with the situation where the worker has lodged a
notice of dispute under the repealed Act before the designated day.
41—Redemptions
Nothing in Part 9 affects the application of section 42 of the repealed Act with
respect to negotiations, and any agreement for, a redemption if entered into in
accordance with that section before the designated day. Apart from that, section
42 of the repealed Act does not apply to or in relation to a liability under
that Act with respect to an existing injury.
42—Loss of future earning capacity
This clause puts it beyond doubt that Part 4 Division 6 of the Act does not
apply to or in relation to an existing injury.
43—Permanent impairment assessment
Under this clause, if a person's entitlement to compensation for non-economic
loss has been determined under the repealed Act in respect of an existing
injury, the person is not entitled to an assessment under this Act in relation
to the same injury (or any other injury arising from the same trauma). That
principle does not apply in prescribed circumstances.
44—Payments on death—lump sums
The Corporation is authorised under this clause to make ex gratia payments
on the application of a person who was the spouse or domestic partner of a
worker who died on or after 1 July 2008. A payment is to be made (in the
absolute discretion of the Corporation) on the application of the person who was
the spouse or domestic partner of the worker. The Corporation is to take into
account the amount (or additional amount) that would have been payable under
section 59 of the Act if that section had been in operation before the trauma.
Under this clause, the Corporation may deal with a claim in relation to the
death of a worker under section 45A of the repealed Act that has not been
determined before the designated day in all respects under clause 59 of the
proposed Act. Clause 59 provides for the payment of compensation in the form of
a lump sum to spouses, domestic partners and children of workers who die as a
result of work injuries.
45—Incidence of liability
This clause extends clauses 64(3) and (4) of the proposed Act to outstanding
payments of compensation under the repealed Act. Clause 64(3) provides that a
self-insured employer is liable to make all outstanding payments of compensation
to which a person is entitled in consequence of the occurrence of a work injury
arising from employment by the employer that occurred before the employer became
a self-insured employer. Clause 64(4) requires the Corporation to pay a
self-insured employer an amount, to be determined in accordance with the code of
conduct for self-insured employers, to offset the self-insured employer's
liability under subclause (3).
46—Payments by employers
This clause makes provision for the recovery by an employer from the Corporation
of amounts paid by the employer as compensation for income maintenance under the
repealed Act where the employer would have a right of recovery from the
Corporation under clause 64 of the proposed Act if that clause has been in
operation at the time of the payment.
47—Provisional payments
This clause provides for the exercise of a right of set off under section 50H of
the repealed Act in relation to a right to the payment of compensation under the
Act.
Division 4—Common law
48—Common law
This clause provides that Part 5 of the Act does not apply to or in relation to
an existing injury or the death of a worker resulting from an existing injury.
Division 5—Dispute resolution
49—Existing proceedings etc
This clause provides for the continuation and completion of applications or
other proceedings commenced before the Workers Compensation Tribunal under the
repealed Act before the designated day. An application or proceeding that is not
commenced before the designated day will proceed before the South Australian
Employment Tribunal (SAET) rather than WCT.
50—Adoption of WCT decisions
This clause authorises SAET to draw conclusions of fact from evidence before WCT,
adopt findings, determinations decisions, directions or orders of WCT and set
aside any decision, direction or order of WCT.
51—Dissolution of WCT
The clause provides for the dissolution of WCT by proclamation of the Governor
when he or she thinks that it is appropriate to do so. When a proclamation is
made, the following will occur:
members of WCT holding office under the repealed Act will cease to hold that
office;
any contract, agreement or arrangement relating to the office will be terminated
(and there will be no right of action against the Minister or the State on
account of the termination);
proceedings before WCT will be dealt with in accordance with provisions made by
the regulations;
a member of WCT who is a Judge of the Industrial Relations Court of South
Australia will continue as a member of SAET under the provisions of the South
Australian Employment Tribunal Act2014.
Division 6—Registration and funding
52—Continuation of registration
This clause provides for the continuation of the registration of employers
registered under the repealed Act immediately before the designated day.
53—Premiums and payments
Under this clause, RTWSA premium orders may take into account the claims
experience of employers under the repealed Act. A hindsight premium under the
repealed Act is payable as if the relevant period applied under the proposed Act
and is to be paid by a date specified by the Corporation. This clause also
provides for continuity of groups constituted under section 72A of the repealed
Act.
54—Scheme reviews
A financial year relevant to the operation of Part 10 will be a financial year
commencing on or after the designated day.
Division 7—Medical panels
55—Medical panels
There is a requirement under this clause for proceedings before Medical Panels
under the repealed Act immediately before the designated day to be concluded as
quickly as is reasonably practicable after that day. Such proceedings will, in
any event, be brought to an end 60 days after that day.
Division 8—WorkCover Ombudsman
56—WorkCover Ombudsman
This clause provides that the person holding office as the WorkCover Ombudsman
immediately before the designated day will cease to hold office on that day.
Division 9—1971/1986 Acts
57—Interpretation
For the purposes of the provisions of Division 9, the appointed day is
the day on which the Workers Compensation Act1971 ( the 1971Act)
was repealed.
58—Application of 1971 Act
The 1971 Act will continue to apply in respect of injuries that are attributable
to traumas that occurred before the appointed day. The new Act applies where an
injury is partially attributable to a trauma that occurred before the appointed
day and partially attributable to an injury that occurred on or after the
appointed day, but this clause sets out various provisions that apply in respect
of such injuries.
59—Mining and Quarrying Industries Fund
This clause provides for the continuation of the scheme established under Part 9
of the 1971 Act for the settlement of claims and other matters arising in
relation to death or disablement from silicosis suffered before the appointed
day. The Corporation will be liable to satisfy any claim made under the scheme
60—Statutory Reserve Fund
There is a requirement under this clause for the Statutory Reserve Fund to
continue to be held as a separate part of the Compensation Fund.
61—Insurance Assistance Fund
This clause requires that the Insurance Assistance Fund continue to be held as a
separate part of the Compensation Fund.
62—Management of funds
This clause authorises investment of the Statutory Reserve Fund and the
Insurance Assistance Fund in common with the Compensation Fund as if they formed
part of the Compensation Fund.
63—Entitlement to documents
The Corporation is entitled under this clause to possession of all documents and
other materials in the possession or power of the Motor Accident Commission
relevant to claims against the Statutory Reserve Fund or to liabilities under
policies of insurance transferred to the Corporation in connection with the
scheme continued under the Schedule.
Division 10—Work health and safety administration costs
64—Work health and safety administration costs
This clause requires that the prescribed percentage of the prescribed amount
under Schedule 5 clause 2(7) and (8) of the Work Health and Safety Act2012 for
the 2015/2016 financial year be at least equal to the total of the prescribed
percentage of the prescribed amount under those provisions for the 2014/2015
financial year and the amount payable under Schedule 5, clause 3 of the WHS Act
for the 2014/2015 financial year. This relates to the percentage of registration
fees that are to be paid to the Department.
Division 11—Renewal of authorised contracts
65—Renewal of authorised contracts
This clause will allow a regulation under section 14(4)(d) of the WorkCover
Corporation Act1994 which authorises a contract to be entered into under
that section to come into operation on 1 July 2015 and without the need for its
commencement to be delayed pending any possible motion of disallowance.
Division 12—Regulations
66—Additional transitional provisions—regulations
This clause provides that the Governor may, by regulation, make additional
provisions of a saving or transitional nature consequent on the enactment of the
Act.
Debate adjourned on motion of Ms Chapman.