Commonwealth Numbered Acts

COMMONWEALTH EMPLOYEES' REHABILITATION AND COMPENSATION ACT 1988 No. 75 of 1988 - SECT 4

4. (1) In this Act, unless the contrary intention appears:

"administering authority" means a Commonwealth authority declared by the
Minister under section 101 to be an administering authority;

"adoption" means adoption under a law of a State or Territory or of a foreign
country;

"aggravation" includes acceleration or recurrence;

"ailment" means any physical or mental ailment, disorder, defect or morbid
condition (whether of sudden onset or gradual development);

"approved Guide" means:

   (a)  the document, prepared by the Commission in accordance with section
28 under the title "Guide to the Assessment of the Degree of Permanent
Impairment", that has been approved by the Minister and is for the time being
in force; and

   (b)  if an instrument varying the document has been approved by the
        Minister-that document as so varied;

"approved program provider" means a person approved under section 34;

"attendant care services", in relation to an employee, means services (other
than household services, medical or surgical services or nursing care) that
are required for the essential and regular personal care of the employee;

"Chief Executive officer" means the Chief Executive officer of the Commission
and includes a person who is acting as the Chief Executive officer;

"claim" means a claim under Part V;

"claimant", in relation to a time after the death of a claimant, has the
meaning given in subsection (11);

"Commission" means the Commission for the Safety, Rehabilitation and
Compensation of Commonwealth Employees established by section 68;

"Commissioner" means a member of the Commission other than the Chief
Executive officer;

"Commonwealth", in relation to persons employed by a Commonwealth authority,
has the additional meaning given in subsection 5 (7);

"Commonwealth authority" means:

   (a)  a body corporate that is incorporated for a public purpose by a law of
        the Commonwealth, other than a body declared by the Minister, by
        notice in writing, to be a body corporate to which this Act does not
        apply;

   (b)  a body corporate that is incorporated for a public purpose by a law of
        a Territory (other than the Northern Territory) and is declared by the
        Minister, by notice in writing, to be a body corporate to which this
        Act applies; or

   (c)  a body corporate:

        (i)    that is incorporated under a law of the Commonwealth or a law
               in force in a State or Territory;

        (ii)   in which the Commonwealth, or a body corporate referred to in
               paragraph (a) or (b), has a controlling interest; and

        (iii)  that is declared by the Minister, by notice in writing, to be a
               body corporate to which this Act applies;

"compensation leave" means any period during which an employee is absent from
his or her employment due to an incapacity for work resulting from an injury
in respect of which compensation is payable under section 19 or 22;

"damages" includes any amount paid under a compromise or settlement of a claim
for damages, whether or not legal proceedings have been instituted, but does
not include an amount paid in respect of costs incurred in connection with
legal proceedings;

"dependant", in relation to a deceased employee, means:

   (a)  the spouse, father, mother, step-father, step-mother, father-in-law,
        mother-in-law, grandfather, grandmother, son, daughter, step-son,
        step-daughter, grandson, grand-daughter, brother, sister, half-brother
        or half-sister of the employee; or

   (b)  a person in relation to whom the employee stood in the position of a
        parent or who stood in the position of a parent to the employee;
being a person who was wholly or partly dependent on the employee at the date
of the employee's death;

"dependent" means dependent for economic support;

"Deputy Chief Executive officer" means the Deputy Chief Executive officer of
the Commission;

"disease" means:

   (a)  any ailment suffered by an employee; or

   (b)  the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material
degree by the employee's employment by the Commonwealth;

"employee" has the meaning given in section 5;

"exempt authority" means a Department or Commonwealth authority (other than an
administering authority) declared by the Minister under section 35 to be an
exempt authority;

"household services", in relation to an employee, means services of a domestic
nature (including cooking, house cleaning, laundry and gardening services)
that are required for the proper running and maintenance of the employee's
household;

"impairment" means the loss, the loss of the use, or the damage or
malfunction, of any part of the body or of any bodily system or function or
part of such system or function;

"injury" means:

   (a)  a disease suffered by an employee; or

   (b)  an injury (other than a disease) suffered by an employee, being a
        physical or mental injury (or the aggravation of such an injury)
        arising out of, or in the course of, the employee's employment;
but does not include any such disease or injury suffered by an employee as a
result of reasonable disciplinary action taken against the employee or failure
by the employee to obtain a promotion, transfer or benefit in connection with
his or her employment;

"loss", in relation to property used by an employee, includes the destruction
of that property;

"medical treatment" means:

   (a)  medical or surgical treatment by, or under the supervision of, a
        legally qualified medical practitioner;

   (b)  therapeutic treatment obtained at the direction of a legally qualified
        medical practitioner;

   (c)  dental treatment by, or under the supervision of, a legally qualified
        dentist;

   (d)  therapeutic treatment by, or under the supervision of, a
        physiotherapist, masseur or chiropractor registered under the law of a
        State or Territory providing for the registration of physiotherapists,
        masseurs or chiropractors, as the case may be;

   (e)  an examination, test or analysis carried out on, or in relation to, an
        employee at the request or direction of a legally qualified medical
        practitioner or dentist and the provision of a report in respect of
        such an examination, test or analysis;

   (f)  the supply, replacement or repair of an artifical limb or other
        artificial substitute or of a medical, surgical or other similar aid
        or appliance;

   (g)  treatment and maintenance as a patient at a hospital; or

   (h)  nursing care, and the provision of medicines, medical and surgical
        supplies and curative apparatus, whether in a hospital or otherwise;

"member" means a member of the Commission;

"non-economic loss", in relation to an employee who has suffered an injury
resulting in a permanent impairment, means loss or damage of a non-economic
kind suffered by the employee (including pain and suffering, a loss of
expectation of life or a loss of the amenities or enjoyment of life) as a
result of that injury or impairment and of which the employee is aware;

"normal weekly earnings" means the normal weekly earnings of an employee
calculated under section 8;

"normal weekly hours", in relation to an employee, means the average number of
hours (including hours of overtime) worked in each week by the employee in his
or her employment during the relevant period as calculated for the purpose of
applying the formula in subsection 8 (1) or (2);

"overtime" includes:

   (a)  any duty on shifts or on Saturdays, Sundays or other holidays; and

   (b)  excess travelling time;

"permanent" means likely to continue indefinitely;

"place of residence", in relation to an employee, means:

   (a)  the place where the employee normally resides;

   (b)  a place, other than the place referred to in paragraph (a), where the
        employee resides temporarily, as a matter of necessity or convenience,
        for the purposes of his or her employment; or

   (c)  any other place where the employee stays, or intends to stay,
        overnight, a journey to which from the employee's place of work does
        not substantially increase the risk of sustaining an injury when
        compared with the journey from his or her place of work to the place
        referred to in paragraph
(a); "place of work", in relation to an employee, includes any place at which
the employee is required to attend for the purpose of carrying out the duties
of his or her employment;

"prescribed child" means:

   (a)  a person under 16; or

   (b)  a person who:

        (i)    is 16 or more but under 25;

        (ii)   is receiving full-time education at a school, college,
               university or other educational institution; and

        (iii)  is not ordinarily in employment or engaged in work on his or
               her own account;

"principal officer", in relation to a Commonwealth authority, means the person
who constitutes, or is acting as the person who constitutes, that authority
or, if the authority is constituted by 2 or more persons, the person who is
entitled to preside at any meeting of the authority at which he or she is
present;

"proceeding under Part VI" has the meaning given in subsection (12);

"property used by an employee" means an artificial limb or other artificial
substitute, or a medical, surgical or other similar aid or appliance, used by
the employee;

"rehabilitation authority", in relation to an employee, means:

   (a)  where the employee is employed by an exempt authority-the Commission;

   (b)  where the employee is employed by an administering authority-the
        principal officer of that authority; and

   (c)  where the employee is employed by a Department or a Commonwealth
        authority, other than an exempt authority-the Secretary of the
        Department or the principal officer of the Commonwealth authority, as
        the case may be;

"rehabilitation program" includes medical, dental, psychiatric and hospital
services (whether on an in-patient or out-patient basis), physical training
and exercise, physiotherapy, occupational therapy and vocational training;

"relevant authority" means:

   (a)  in relation to an employee who is employed by an administering
        authority-that administering authority; and

   (b)  in relation to any other employee-the Commission;

"relevant period" means the period calculated under section 9;

"spouse" includes:

   (a)  in relation to an employee or a deceased employee-a person of the
        opposite sex to the employee who lives with, or immediately before the
        date of the employee's death lived with, the employee as the spouse of
        the employee on a bona fide domestic basis although not legally
        married to the employee; and

   (b)  in relation to an employee or a deceased employee who is or was a
        member of the Aboriginal race of Australia or a descendant of
        indigenous inhabitants of the Torres Strait Islands-a person who is or
        was recognised as the employee's husband or wife by the custom
        prevailing in the tribe or group to which the employee belongs or
        belonged;

"suitable employment", in relation to an employee who has suffered an injury
in respect of which compensation is payable under this Act, means:

   (a)  in the case of an employee who, on the day on which he or she was
        injured was a permanent employee of the Commonwealth and who did not
        subsequently terminate that employment-employment by the Commonwealth
        in work for which the employee is suited having regard to:

        (i)    the employee's age, experience, training, language and other
               skills;

        (ii)   the employee's suitability for rehabilitation or vocational
               retraining;

        (iii)  where employment is available in a place that would require the
               employee to change his or her place of residence-whether it is
               reasonable to expect the employee to change his or her
               place of residence; and

        (iv)   any other relevant matter; and

   (b)  in any other case-any employment (including self-employment), having
        regard to the matters specified in subparagraphs (a) (i), (ii), (iii)
        and (iv);

"superannuation amount", in relation to a pension received by an employee in
respect of a week, or a lump sum benefit received by an employee, being a
pension or benefit under a superannuation scheme, means an amount equal to:

   (a)  if the scheme identifies a part of the pension or lump sum as
        attributable to the contributions made under the scheme by the
        Commonwealth or Commonwealth authority-the amount of that part; or

   (b)  in any other case-the amount assessed by the relevant authority to be
        the part of the pension or lump sum that is so attributable or, if
        such an assessment cannot be made, the amount of the pension received
        by the employee in respect of that week or the amount of the lump sum,
        as the case requires;

"superannuation scheme" means any superannuation scheme under which the
Commonwealth or a Commonwealth authority makes contributions on behalf of
employees and includes a superannuation or provident scheme established or
maintained by the Commonwealth or a Commonwealth authority;

"the 1912 Act" means the Commonwealth Workmen's Compensation Act 1912;

"the 1930 Act" means the Commonwealth Employees' Compensation Act 1930;

"the 1971 Act" means the Compensation (Commonwealth Government Employees) Act
1971;

"therapeutic treatment" includes an examination, test or analysis done for the
purpose of diagnosing, or treatment given for the purpose of alleviating, an
injury.
(2) For the purposes of paragraph (a) of the definition of "dependant",
relationships referred to in that paragraph shall be taken to include:

   (a)  illegitimate relationships and relationships by adoption; and

   (b)  relationships that are traced through illegitimate relationships or
        relationships by adoption.

(3) For the purposes of this Act, any physical or mental injury or ailment
suffered by an employee as a result of medical treatment of an injury shall be
taken to be an injury if, but only if:

   (a)  compensation is payable under this Act in respect of the injury for
        which the medical treatment was obtained; and

   (b)  it was reasonable for the employee to have obtained that medical
        treatment in the circumstances.

(4) For the purposes of this Act, a person shall be taken to have been wholly
or partly dependent on an employee at the date of the employee's death if the
person would have been so dependent but for an incapacity of the employee that
resulted from an injury.

(5) For the purposes of this Act, a person who, immediately before the date of
an employee's death, lived with the employee and was:

   (a)  the spouse of the employee; or

   (b)  a child of the employee, being a prescribed child; shall be taken to
        be a person who was wholly dependent on the employee at that date.

(6) For the purposes of this Act, other than subsection 17 (5), a son or
daughter of a deceased employee who was born alive after the employee's death
shall be treated as if he or she had been born immediately before the
employee's death and was wholly dependent upon the employee at the date of the
employee's death.

(7) In ascertaining, for the purposes of this Act, whether a child is or was
dependent on an employee, any amount of:

   (a)  allowance under Part IX, X or XII of the Social Security Act 1947; or

   (b)  pension under Part XI of that Act; shall not be taken into account.

(8) A reference in this Act to an injury suffered by an employee is, unless
the contrary intention appears, a reference to an injury suffered by the
employee in respect of which compensation is payable under this Act.

(9) A reference in this Act to an incapacity for work is a reference to an
incapacity suffered by an employee as a result of an injury, being:

   (a)  an incapacity to engage in any work; or

   (b)  an incapacity to engage in work at the same level at which he or she
        was engaged by the Commonwealth in that work or any other work
        immediately before the injury happened.

(10) For the purposes of the application of this Act in relation to an
employee employed by an administering authority, or a dependant of such a
person, a reference in this Act (other than in section 28 or Part III, V, VI,
VII or VIII) to the Commission is, unless the contrary intention appears, a
reference to that authority.

(11) A reference in this Act to a claimant is, in relation to any time after
the death of the claimant, a reference to his or her legal personal
representative.

(12) A reference in this Act to the institution of a proceeding under Part
VIin respect of a reviewable decision is a reference to the making of an
application to the Administrative Appeals Tribunal for review of that
decision.

(13) For the purposes of this Act, an employee who is under the influence of
alcohol or a drug (other than a drug prescribed for the employee by a legally
qualified medical practitioner or dentist and used by the employee in
accordance with that prescription) shall be taken to be guilty of serious and
wilful misconduct.