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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Workers Compensation Legislation
Amendment Bill 2000
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendments 2
4 Explanatory notes 2
Schedules
1 Amendments relating to corporate governance 3
2 Amendments relating to injury management pilot projects
and market incentives 18
3 Amendments relating to claims procedures 24
4 Amendments relating to common law elections 26
5 Amendments relating to contributory negligence in
contract actions 28
6 Amendments relating to disputes about liability 30
7 Amendments relating to medical reports 32
8 Amendments relating to information exchange 34
9 Amendments relating to liability involving multiple
managed fund insurers 39
10 Amendments relating to recovery from directors of
uninsured corporations 47
Workers Compensation Legislation Amendment Bill 2000
Contents
Page
11 Amendments relating to recovery of inspection costs 58
12 Amendments relating to late payment fees on unpaid
insurance premiums 61
13 Amendments relating to certificates of currency with
respect to insurance 63
14 Amendments relating to fraud against the workers
compensation scheme 68
15 Amendments relating to powers of inspectors 71
16 Amendments relating to increased penalties 75
17 Amendments relating to insurer penalties 78
18 Amendment relating to deduction of workers
compensation costs from wages 81
19 Amendments relating to criminal liability of Crown 82
20 Amendments relating to specialised insurers and self-
insurers 83
21 Amendments relating to insurance premiums appeals 92
22 Amendments relating to the transfer of provisions from the
regulations 99
23 Miscellaneous amendments 104
Contents page 2
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Parliaments
Legislative Council
2000
New South Wales
Workers Compensation Legislation
Amendment Bill 2000
Act No , 2000
An Act to amend the Workers Compensation Act 1987, the Workplace Injury
Management and Workers Compensation Act 1998 and certain other Acts to make
further provision with respect to workers compensation benefits, claims, insurance,
injury management, administration, conciliation and other matters; and for other
purposes.
Clause 1 Workers Compensation Legislation Amendment Bill 2000
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Workers Compensation Legislation Amendment Act
2000.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation.
(2) A proclamation under this section may appoint a particular time on a
day as the time for commencement on that day.
3 Amendments
Each Act specified in Schedules 123 is amended as set out in those
Schedules.
4 Explanatory notes
The matter appearing under the heading "Explanatory note" in any of
the Schedules does not form part of this Act.
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to corporate governance Schedule 1
Schedule 1 Amendments relating to corporate
governance
(Section 3)
1.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 4 Definitions
Omit the definition of Advisory Council from section 4 (1).
[2] Section 4 (1), definition of "Council"
Insert in alphabetical order:
Council means the Workers Compensation and Workplace
Occupational Health and Safety Council of New South Wales
constituted under this Act.
[3] Section 4 (1), definition of "OHS Council"
Omit the definition.
Explanatory note
Items [1][3] are consequential on the other amendments made by this Schedule.
[4] Chapter 2, Part 1 Workers Compensation Advisory Council of New
South Wales
Omit the Part.
Explanatory note
Item [4] repeals provisions that constitute and provide for the membership and functions
of the Advisory Council.
[5] Section 15 Board of directors
Omit section 15 (4).
Explanatory note
Item [5] repeals a provision that provided for the Advisory Council and others to make
recommendations to the Minister regarding the persons to be appointed to the Board of
Directors of the Authority.
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Schedule 1 Amendments relating to corporate governance
[6] Section 15 (5)
Omit "Advisory".
Explanatory note
Item [6] is consequential on the abolition of the Advisory Council.
[7] Section 19 Board of Directors
Omit "and must have regard to the policies of the Advisory Council".
Explanatory note
Item [7] removes the requirement that the Board of the Authority must have regard to the
policies of the Advisory Council, and is consequential on the abolition of the Advisory
Council.
[8] Section 22 General functions of the Authority
Omit section 22 (1) (c) and (d). Insert instead:
(c) to monitor and report to the Minister on the operation
and effectiveness of the workers compensation
legislation and the occupational health and safety
legislation, and on the performance of the schemes to
which that legislation relates,
(d) to undertake such consultation as it thinks fit in
connection with current or proposed legislation relating
to any such scheme as it thinks fit,
(d1) to monitor and review key indicators of financial
viability and other aspects of any such schemes,
Explanatory note
Item [8] omits certain functions of the Authority that the abolition of the Advisory Council
will make redundant and adds certain monitoring, reporting and consultation functions
that were previously functions of the Advisory Council.
[9] Section 22 (3) (c)
Omit "having regard to policies of the Advisory Council".
Explanatory note
Item [9] repeals (consequentially on the abolition of the Advisory Council) provisions that
required the Authority to ensure the efficient operation of workers compensation
insurance arrangements having regard to policies of the Advisory Council.
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[10] Section 23 Specific functions of the Authority
Omit "to assist in developing" from section 23 (1) (c).
Insert instead "to develop".
[11] Section 23 (1) (f)
Omit "to assist in identifying (and as far as practicable minimising or
removing)".
Insert instead "to identify (and facilitate or promote the development of
programs that minimise or remove)".
[12] Section 23 (1) (h)
Omit "to assist in developing". Insert instead "to develop".
[13] Section 23 (1) (i)
Omit "assist in". Insert "facilitate and promote".
[14] Section 23 (1) (i)
Insert at the end of the paragraph:
· occupational health and safety representatives or
other agreed arrangements for consultation at
places of work,
[15] Section 23 (1) (k)
Omit "to assist in the development of". Insert instead "to develop".
[16] Section 23 (1) (m)
Omit the paragraph. Insert instead:
(m) to collect, analyse and publish data and statistics, as the
Authority considers appropriate,
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Schedule 1 Amendments relating to corporate governance
[17] Section 23 (1) (r)
Omit the paragraph. Insert instead:
(r) to provide administrative and other support to the
Council, the Rating Bureau and Industry Reference
Groups.
[18] Section 23 (2)
Omit "Advisory".
[19] Section 24 Constitution of Rating Bureau
Omit section 24 (3) (b).
Explanatory note
Items [10][19] make amendments that are consequential on the abolition of the Advisory
Council and the redistribution of its functions between the Authority and the Council.
[20] Section 25 Membership and procedure of Rating Bureau
Omit section 25 (1) (b) and (c). Insert instead:
(b) 1 person appointed by the Minister as an employer
representative from a panel of at least 3 persons
nominated by such bodies or organisations representing
employers as are approved by the Minister,
(c) 1 person appointed by the Minister as an employee
representative from a panel of at least 3 persons
nominated by the Labor Council of New South Wales,
Explanatory note
Item [20] provides for the employer and employee representatives on the Rating Bureau
to be nominated by certain organisations, rather than by the Advisory Council as at
present.
[21] Section 26 Functions of Rating Bureau
Omit section 26 (1) (b) and (c).
Explanatory note
Item [21] is consequential on the abolition of the Advisory Council and the redistribution
of its functions between the Authority and the Council.
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[22] Chapter 2, Part 4
Omit Part 4. Insert instead:
Part 4 Workers Compensation and Workplace
Occupational Health and Safety Council of
New South Wales
28 Constitution of Council
There is constituted by this Act a Workers Compensation and
Workplace Occupational Health and Safety Council of New
South Wales.
29 Membership and procedure of Council
(1) The Council is to consist of the following members:
(a) 1 person appointed by the Minister who is to be
Chairperson of the Council,
(b) 5 persons appointed by the Minister as employer
representatives from a panel of at least 6 persons
nominated by such bodies or organisations representing
employers as are approved by the Minister,
(c) 5 persons appointed by the Minister as employee
representatives from a panel of at least 6 persons
nominated by the Labor Council of New South Wales,
with one of those 5 appointed to represent injured
workers,
(d) 1 person appointed by the Minister to represent legal
practitioners,
(e) 1 person appointed by the Minister to represent medical
practitioners,
(f) 1 person appointed by the Minister to represent other
health care professionals,
(g) 1 person appointed by the Minister to represent insurers,
(h) 1 person appointed by the Minister, being a person
whom the Minister considers has expertise in injury
management and rehabilitation,
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(i) 1 person appointed by the Minister, being a person
whom the Minister considers has expertise in
occupational health and safety.
(2) In appointing members of the Council, the Minister is to ensure
that the interests of rural employers and employees are
adequately represented.
(3) Schedule 2 has effect with respect to the Council.
30 Functions of Council
(1) The Council has the following functions:
(a) to provide advice to the Minister on any matter relating
to occupational health and safety, injury management
and workers compensation that the Minister refers to the
Council for advice,
(b) to provide advice to the Minister on matters of concern
to scheme participants arising from the operation of
current workers compensation legislation and
occupational health and safety legislation, including
advice on more appropriate strategies for achieving the
objectives of that legislation,
(c) to serve as a channel of communication between
scheme participants and the Minister,
(d) to provide advice to the Minister on emerging issues,
problems or trends in relation to occupational health
and safety, injury management and workers
compensation,
(e) to examine the operation of the WorkCover scheme,
(f) such other functions as are conferred or imposed on it
by or under this or any other Act.
(2) In this section:
scheme participants means employers, employees and other
participants in the schemes to which the workers compensation
legislation and occupational health and safety legislation relate.
Explanatory note
Item [22] repeals the provisions that constitute and provide for the membership and
functions of the Occupational Health and Safety Council (the OHS Council) and replaces
those provisions with provisions for the Workers Compensation and Workplace
Occupational Health and Safety Council.
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[23] Chapter 2, Part 5 Industry Reference Groups
Omit "Advisory Council" wherever occurring. Insert instead "Authority".
Explanatory note
Item [23] makes a consequential amendment that transfers the functions of the Advisory
Council with respect to Industry Reference Groups to the WorkCover Authority.
[24] Section 33 Functions of Industry Reference Groups
Omit "OHS Council" from section 33 (2) (b). Insert instead "Authority".
Explanatory note
Item [24] makes an amendment that is consequential on the abolition of the OHS Council
and the Advisory Council.
[25] Section 33 (2) (c)
Omit "Advisory Council". Insert instead "Authority".
Explanatory note
Item [25] makes an amendment to the functions of the Industry Reference Groups that
is consequential on the abolition of the Advisory Council.
[26] Section 35 Payments into and from Fund
Omit section 35 (2) (b). Insert instead:
(b) the remuneration (including allowances) of members of,
and any other costs of operation of, the Council and any
consultative body established by the Authority,
Explanatory note
Item [26] makes a consequential amendment.
[27] Section 121 Assessment of medical disputes by approved medical
specialists
Omit "Advisory Council" from the definition of approved medical
specialist in section 121 (1).
Insert instead "Authority".
Explanatory note
Item [27] transfers from the Advisory Council to the Authority the function of approving
medical specialists to assess medical disputes.
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[28] Section 159 Approval of methodology for calculating risk premiums
Omit section 159 (3) and (4). Insert instead:
(4) In formulating a proposed methodology for submission to the
Authority, the Rating Bureau is to have regard to actuarial
advice and other advice and information from such sources as
the Rating Bureau considers appropriate.
Explanatory note
Item [28] removes the requirement for the Rating Bureau to consult with and have regard
to the advice of the Advisory Council in the formulation of a risk premium calculation
methodology.
[29] Section 172 Power to direct premium rebate
Omit section 172 (4).
Explanatory note
Item [29] abolishes the role of the Advisory Council in giving advice to the Authority on
the exercise of a power to direct a premium rebate to employers.
[30] Section 174 Deficit reduction contribution
Omit section 174 (2).
Explanatory note
Item [30] repeals the provision that requires the Authority to give the Advisory Council 6
months' notice of its intention to direct payment of a deficit reduction contribution.
[31] Section 237 Service of documents
Omit the definition of body from section 237 (1). Insert instead:
body means the Authority, the Council or the Rating Bureau.
[32] Section 240 Personal liability
Omit the definition of body from section 240 (1). Insert instead:
body means the Authority, the Board of Directors, the Council
or the Rating Bureau.
[33] Section 241 Seals
Omit "of the Advisory Council or" from section 241 (2).
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[34] Section 243 Disclosure of information
Omit section 243 (2) (a). Insert instead:
(a) the Council and any consultative body established by
the Authority for the purposes of the workers
compensation legislation, and
Explanatory note
Items [31][34] make consequential amendments.
[35] Schedule 2
Omit the Schedule. Insert instead:
Schedule 2 Provisions relating to Council
(Section 29)
1 Definition
In this Schedule:
member means a member of the Council.
2 Nomination of panels for appointment as members
(1) If nominations to constitute a panel are not made within the
time and in the manner directed by the Minister, the Minister
may appoint a person to be a member instead of the person
required to be appointed from the panel.
(2) A person so appointed is taken to have been duly nominated
for appointment.
3 Deputies of members
(1) The Minister may, from time to time, appoint a person to be the
deputy of a member, and the Minister may revoke any such
appointment.
(2) The deputy of a member appointed from a panel is to be
appointed from the same or a further panel.
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(3) In the absence of a member, the member's deputy:
(a) may, if available, act in the place of the member, and
(b) while so acting, has all the functions of the member and
is taken to be a member.
(4) The deputy of a member who is Chairperson of the Council
does not (because of this clause) have the member's functions
as Chairperson.
(5) A person while acting in the place of a member is entitled to be
paid such allowances as the Minister may from time to time
determine in respect of the person.
(6) For the purposes of this clause, a vacancy in the office of a
member is taken to be an absence of the member.
4 Terms of office of members
Subject to this Schedule, a member holds office for such period
(not exceeding 3 years) as is specified in the member's
instrument of appointment, but is eligible (if otherwise
qualified) for reappointment.
5 Allowances
A member is entitled to be paid such allowances as the
Minister may from time to time determine in respect of the
member.
6 Vacancy in office of member
(1) The office of a member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to
the Minister, or
(d) is removed from office by the Minister under this clause
or by the Governor under Part 8 of the Public Sector
Management Act 1988, or
(e) is absent from 4 consecutive meetings of the Council of
which reasonable notice has been given to the member
personally or in the ordinary course of post, except on
leave granted by the Council or unless, before the
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expiration of 4 weeks after the last of those meetings,
the member is excused by the Council for having been
absent from those meetings, or
(f) becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an
assignment of his or her remuneration for their benefit,
or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is
punishable by penal servitude or imprisonment for 12
months or more or is convicted elsewhere than in New
South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable.
(2) The Minister may at any time remove a member from office.
(3) The Minister must remove a member from office if:
(a) the member is a member appointed under section 29 (1)
(b) or (c), and
(b) the bodies or organisations that nominated the panel of
persons from whom the member was appointed request
the Minister in writing to remove the member from
office.
7 Filling of vacancy in office of member
If the office of a member becomes vacant, a person is, subject
to this Act, to be appointed to fill the vacancy.
8 Effect of certain other Acts
(1) Part 2 of the Public Sector Management Act 1988 does not
apply to or in respect of the appointment of a member.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified
office to devote the whole of his or her time to the
duties of that office, or
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(b) prohibiting the person from engaging in employment
outside the duties of that office,
the provision does not operate to disqualify the person from
holding that office and also the office of a member or from
accepting and retaining any remuneration payable to the person
under this Act as a member.
9 General procedure
The procedure for the calling of meetings of the Council and
for the conduct of business at those meetings is, subject to this
Act and the regulations, to be as determined by the Council.
10 Quorum
The quorum for a meeting of the Council is 9 members.
11 Presiding member
(1) The Chairperson of the Council is to preside at a meeting of the
Council.
(2) In the absence of the Chairperson at a meeting of the Council,
a member chosen by the members present at the meeting is to
preside at the meeting.
(3) The person presiding at a meeting of the Council has a
deliberative vote and, in the event of an equality of votes, has
a second or casting vote.
12 Voting
A decision supported by a majority of the votes cast at a
meeting of the Council at which a quorum is present is the
decision of the Council.
13 Attendance by non-members
A person authorised by the Council or the Chairperson of the
Council may attend a meeting of the Council for the purpose of
assisting the Council to exercise its functions.
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14 First meeting
The Minister is to call the first meeting of the Council in such
manner as the Minister thinks fit.
Explanatory note
Item [35] inserts new provisions relating to the membership and procedures of the
Council to replace those dealing with the Advisory Council.
[36] Schedule 4 Provisions relating to Rating Bureau
Omit "Advisory Council" from clause 3 (2) wherever occurring.
Insert instead "Minister".
Explanatory note
Item [36] provides for the Minister (instead of the Advisory Council) to appoint the
deputies of members of the Rating Bureau.
[37] Schedule 5 Provisions relating to Occupational Health and Safety
Council
Omit the Schedule.
Explanatory note
Item [37] repeals provisions dealing with the membership and procedures of the
Occupational Health and Safety Council.
1.2 Workers Compensation Act 1987 No 70
[1] Schedule 6, Part 4 Provisions relating to weekly payments of
compensation
Omit "A regulation may not be made under this subclause except with the
concurrence of the Advisory Council." from clause 6A.
Explanatory note
Item [1] repeals a provision that required the concurrence of the Advisory Council before
a regulation could be made with respect to the operation of certain amendments to the
provisions of the Act concerning commutation of liabilities.
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[2] Schedule 6 Savings, transitional and other provisions
Insert after Part 18A of Schedule 6:
Part 18B Additional provisions consequent on
enactment of Workers Compensation
Legislation Amendment Act 2000
1 Abolition of Advisory Council and OHS Council
(1) In this clause:
former body means the Workers Compensation Advisory
Council of New South Wales or the Occupational Health and
Safety Council of New South Wales, constituted under the
1998 Act.
(2) The former bodies are abolished.
(3) A person who held office as a member of a former body
immediately before its abolition ceases to hold office and is not
entitled to any remuneration or compensation for loss of that
office.
(4) Any such person is eligible (if otherwise qualified) to be
appointed to the Council.
2 Membership of Rating Bureau
A person holding office as a member of the Rating Bureau
under section 25 (1) (b) or (c) of the 1998 Act immediately
before the substitution of the relevant paragraph by the Workers
Compensation Legislation Amendment Act 2000 is taken to
have been duly appointed under the relevant paragraph as so
substituted.
3 Industry Reference Groups
Any act, matter or thing done before the commencement of this
clause by the Advisory Council under or for the purposes of
Part 5 (Industry Reference Groups) of Chapter 2 of the 1998
Act (including the establishment of a system of Industry
Reference Groups) is taken to have been done by the Authority.
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4 Approved medical specialists
A list of medical specialists approved by the Advisory Council
for the purposes of the definition of approved medical
specialist in section 121 of the 1998 Act as at the
commencement of this clause is taken to have been approved
by the Authority.
Explanatory note
Item [2] provides for the formal abolition of the Advisory Council and the Occupational
Health and Safety Council and enacts a savings provision to save the following:
(a) the current membership of the Rating Bureau, as a consequence of changes to the
provisions for the appointment of its members,
(b) the current arrangements for Industry Reference Groups, as a consequence of the
abolition of the Advisory Council and the transfer of its functions with respect to
Industry Reference Groups to the WorkCover Authority,
(c) the current list of approved medical specialists, as a consequence of the abolition
of the Advisory Council and the transfer of its functions with respect to the approval
of medical specialists to the WorkCover Authority.
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incentives
Schedule 2 Amendments relating to injury
management pilot projects and market
incentives
(Section 3)
Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 42A
Insert after section 42:
42A Injury management pilot projects
Schedule 5A has effect.
Explanatory note
Item [1] inserts a provision that gives effect to proposed Schedule 5A (see item [3]).
[2] Section 230A
Insert before section 231:
230A Premium Discount Schemes
(1) The Authority may establish a Premium Discount Scheme to
encourage employers to improve occupational health and safety
and injury management performance so as to minimise the
financial and social costs of workplace injury.
(2) A Premium Discount Scheme can provide for any of the
following:
(a) the conditions or requirements that must be met to be
eligible to participate in the scheme,
(b) the awarding to employers who participate in the
scheme of discounts on the premiums payable by them
for policies of insurance under this Act or the 1987 Act,
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(c) the approval of persons (approved persons) to exercise
functions under the scheme, including the function of
awarding premium discounts under the scheme to
employers, and the suspension or withdrawal of any
such approval,
(d) the regulation of the conduct and activities of approved
persons and employers under the scheme,
(e) the review and measurement of the occupational health
and safety and injury management performance of
approved persons and employers participating in the
scheme,
(f) the authorisation of different approved persons to award
different levels of premium discounts, depending on
such factors as the Authority determines.
(3) The regulations may make provision for or with respect to
premium discount schemes.
(4) In particular (but without limiting the generality of subsection
(3)) the regulations may do any of the following:
(a) make provision for or with respect to any of the matters
provided for in subsection (2),
(b) provide for a review by the Administrative Decisions
Tribunal under the Administrative Decisions Tribunal
Act 1997 of specified decisions made by the Authority
in connection with the operation of a Premium Discount
Scheme,
(c) create offences punishable by a penalty not exceeding
50 penalty units.
(5) An insurance premiums order may include provision for or
with respect to requiring the calculation of the premium
payable by an employer for a policy of insurance under the
1987 Act to take account of any premium discount awarded to
the employer under a Premium Discount Scheme.
(6) If the Authority so directs, the methodology to be used for the
calculation of risk premiums (as referred to in section 159) in
respect of a policy of insurance under this Act is to include
provision to give effect to any premium discount awarded to an
employer under a Premium Discount Scheme.
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incentives
(7) The determination under section 164 of the premium payable
by an employer for a policy of insurance under this Act is to
give effect to any premium discount awarded to the employer
under a Premium Discount Scheme.
Explanatory note
Item [2] inserts proposed section 230A which provides for the Authority to establish
Premium Discount Schemes to encourage employers to improve occupational health and
safety and injury management performance so as to minimise the financial and social
costs of workplace injury. Among other things, a Premium Discount Scheme can provide
for the awarding of discounts on workers compensation insurance premiums to
employers who participate in the Scheme.
[3] Schedule 5A
Insert after Schedule 5:
Schedule 5A Injury management pilot projects
(Section 42A)
1 2 year pilot scheme
(1) This Schedule (except subclause (2)) operates for a 2 year
period following the commencement of this Schedule.
(2) The effectiveness of this Schedule is to be evaluated by an
independent person or body, chosen by the Authority by private
tender, and the results of the evaluation are to be referred to the
Law and Justice Committee of the Legislative Council which
is to review the results and report to Parliament.
2 Definitions
In this Schedule:
employer's injury manager means the person for the time
being appointed under this Schedule as injury manager for the
group of employers of which the employer is a member.
injury management functions means:
(a) any function arising under Chapter 3 (Workplace injury
management),
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incentives
(b) any function that may be exercised in connection with
dealing with and satisfying any claim against which an
employer is indemnified under a policy of insurance,
(c) such other functions in connection with the operation of
this Act or the 1987 Act or the regulations under those
Acts as may be prescribed by the regulations for the
purposes of this definition.
3 Appointment of injury manager for group of employers
(1) The Authority may, by order published in the Gazette, appoint
a person as injury manager for the employers in a group of
employers identified in the order as the group of employers to
whom the order applies.
(2) A group of employers may be identified in an order by
reference to employers in a geographical area or to employers
engaged in a particular business or industry or may be
identified in any other manner.
(3) The appointment of an injury manager may be made so as to
apply in respect of all claims or injuries or be limited to apply
in respect of a specified class or classes of claims or injuries,
and may be made subject to specified terms and conditions.
(4) The Authority may by order in writing direct that an order
under subclause (1) is not to apply to a specified employer or
to a specified class of employers, and such a direction has
effect accordingly.
4 Injury manager appointed as agent and attorney of employers
and insurers
(1) An employer's injury manager is by this clause appointed as
the agent and attorney of the employer, and of any insurer of
the employer, in respect of such of the injury management
functions of the employer or insurer as are specified in the
order appointing the injury manager.
(2) As agent and attorney of an employer or insurer, an injury
manager may exercise such of the rights and discharge such of
the obligations of the employer and the insurer as may be
necessary or convenient for the effectual exercise by the injury
manager of the functions in respect of which the injury
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incentives
manager is appointed agent and attorney of the employer or
insurer.
(3) The functions of an injury manager under this Schedule are
subject to:
(a) the terms and conditions of the appointment of the
injury manager, and
(b) such directions as the Authority may give to the injury
manager in writing from time to time.
(4) An injury manager may exercise rights and discharge
obligations as agent of an employer in the name of the
employer or in the injury manager's own name.
(5) When an injury manager is authorised under this Schedule to
exercise any rights or discharge any obligations of an employer
or insurer as agent and attorney, the employer or insurer is not
entitled to exercise those rights or discharge those obligations,
except with the consent of the injury manager or the Authority.
(6) The order appointing an injury manager may require that any
specified reference in this Act, the 1987 Act, the regulations
under those Acts or a policy of insurance to an insurer or to an
employer is, in connection with the exercise of any functions of
the injury manager under this Schedule, to be read as a
reference to the injury manager.
(7) The appointment effected by this clause may be revoked only
by order under this Schedule.
5 Disclosure of information
The regulations may make provision for or with respect to
authorising the Authority to disclose information obtained by
the Authority as a result of or in connection with the operation
of this Schedule.
6 Funding
(1) The Authority may establish a fund (an injury management
fund) to be used for the payment of amounts by an injury
manager in the performance of functions as agent and attorney
of an employer or insurer.
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to injury management pilot projects and market Schedule 2
incentives
(2) The Authority may, by direction in writing to an insurer,
require the insurer to pay amounts into an injury management
fund out of the insurer's statutory fund.
(3) The regulations may make provision for or with respect to the
following matters in connection with injury management funds:
(a) requiring the payment of interest on and the recovery of
overdue payments required to be made by insurers into
an injury management fund,
(b) the functions of an injury manager in connection with
the administration of an injury management fund,
(c) the winding up of any such fund and the payment into
the statutory funds of insurers of amounts standing to
the credit of the fund,
(d) the auditing of an injury management fund.
(4) The assets of the statutory fund of an insurer are authorised to
be applied as required by or under this clause.
Explanatory note
Item [2] authorises the Authority to establish pilot projects under which the Authority will
appoint an injury manager for the employers in a particular area or in a particular
business or industry to act as agent and attorney for the employers and their workers
compensation insurers in respect of the following functions:
(a) any function arising under Chapter 3 (Workplace injury management),
(b) any function that may be exercised in connection with dealing with and finalising any
claim against which the employer is indemnified under a policy of insurance or
satisfying any such claim or any judgment or award against which the employer is
indemnified under a policy of insurance,
(c) such other functions in connection with the operation of the Act as may be
prescribed by the regulations.
The functions of the injury manager will be specifically stated in the order appointing the
injury manager and the power of the injury manager to act as agent and attorney of an
insurer or employer will be limited to those functions.
Page 23
Workers Compensation Legislation Amendment Bill 2000
Schedule 3 Amendments relating to claims procedures
Schedule 3 Amendments relating to claims procedures
(Section 3)
3.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
Section 66 Manner of making claim for compensation
Insert after section 66 (2):
(2A) Once a claim for compensation (the initial claim) in respect of
injury or death has been duly made by a person in accordance
with subsection (1) or (2), any further claim by the person for
compensation in respect of the injury or death may be made by
serving it on either the employer from whom compensation is
claimed or the insurer who has indemnified the employer.
(2B) In subsection (2A), further claim includes:
(a) any claim by the person for compensation of a different
kind from that claimed in respect of the injury or death
by the initial claim, or
(b) any claim that is supplementary to or associated with
the initial claim.
(2C) An insurer must notify the employer concerned when a further
claim is made by serving it on the insurer if the claim:
(a) is for compensation under Division 4 (Compensation
for non-economic loss) of Part 3 of the 1987 Act, or
(b) is a claim of a kind that is prescribed by the regulations
for the purposes of this section.
(2D) The regulations may provide that in a specified class or classes
of case a further claim must, despite subsection (2A), be served
on the employer from whom the compensation is claimed.
Explanatory note
Item [1] allows an injured worker (who has made an initial claim for compensation through
his or her employer) to make a claim for further payments in respect of the same injury
(eg payment for permanent disability), or a claim that is supplementary to or associated
with the initial claim, directly to the employer's insurer as an alternative to making it to the
employer.
Page 24
Workers Compensation Legislation Amendment Bill 2000
Amendments relating to claims procedures Schedule 3
3.2 Workers Compensation Act 1987 No 70
Schedule 6, Part 9 Provisions relating to notice of injury and
claims for compensation
Insert as clause 10 of Part 9 of Schedule 6:
10 Serving claims on insurer
(1) The amendments made to section 66 of the 1998 Act by the
Workers Compensation Legislation Amendment Act 2000 do
not apply to a claim made before the commencement of those
amendments.
(2) However, those amendments extend to a claim made after the
commencement of those amendments where the initial claim
referred to in the amendments was made before the
commencement of those amendments.
Explanatory note
Clause 10 is a transitional provision that is consequential on the amendments made by
this Schedule to section 66 of the 1998 Act which allow further claims for compensation
(after the initial claim is made to the employer) to be made directly to the workers
compensation insurer. The transitional provision extends those amendments to cases
where the initial claim on the employer is made before the commencement of the
amendments, and makes it clear that the amendment does not otherwise apply in respect
of claims made before the amendments commence.
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Workers Compensation Legislation Amendment Bill 2000
Schedule 4 Amendments relating to common law elections
Schedule 4 Amendments relating to common law
elections
(Section 3)
Workers Compensation Act 1987 No 70
[1] Section 151A Election--damages or "Table of disabilities"
compensation
Omit section 151A (3) (b). Insert instead:
(b) by commencing proceedings in the Compensation Court
to recover that permanent loss compensation or by
accepting payment of that permanent loss compensation
(in which case the person ceases to be entitled to
recover damages in respect of the injury).
Explanatory note
Item [1] amends the provision of the 1987 Act that requires a person entitled to
compensation to elect whether to claim permanent loss compensation under the Act or
damages from the employer at common law. The amendment provides that the
commencement of proceedings in the Compensation Court to recover permanent loss
compensation under the Act is an election to claim that compensation which prevents the
claimant from claiming common law damages from the employer.
[2] Section 151A (3A)
Insert after section 151A (3):
(3A) The amendment of a claim that is the subject of proceedings
before the Compensation Court to include a claim for
permanent loss compensation is (for the purposes of subsection
(3) (b)) taken to constitute the commencement of proceedings
in the Compensation Court to recover that permanent loss
compensation.
Explanatory note
Item [2] provides that for the purposes of the amendment in item [1] the amendment of
a claim before the Compensation Court to include a claim for permanent loss
compensation constitutes the commencement of proceedings to recover that
compensation.
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to common law elections Schedule 4
[3] Schedule 6 Savings, transitional and other provisions, Part 14
Provisions relating to common law remedies
Insert as clause 12 of Part 14 of Schedule 6:
12 Election to claim compensation--2000 amending Act
(1) The amendments made to section 151A by the Workers
Compensation Legislation Amendment Act 2000 apply in
respect of injuries received before or after the commencement
of those amendments, but do not apply in respect of the
commencement of proceedings in the Compensation Court
before that commencement.
(2) In a case in which proceedings in the Compensation Court are
commenced before the commencement of those amendments:
(a) section 151A (3) (b) continues to apply as it was in
force when the proceedings were commenced, and
(b) section 151A (3) (b) is taken to have been amended by
replacing the words "or by the Compensation Court
making an award in respect of that permanent loss
compensation" with the words "or by the
Compensation Court awarding that permanent loss
compensation (whether by award, interim award or
order)".
(3) A reference in this clause to the commencement of proceedings
has the extended meaning given to that expression in section
151A (3) (b) by section 151A (3A).
Explanatory note
Item [3] inserts a transitional provision dealing with how the amendments made by items
[1] and [2] apply in respect of injuries received before the amendments commence.
Generally, the amendments apply to injuries received before or after the amendments
commence but do not apply to the commencement of proceedings before the
amendments commence.
Page 27
Workers Compensation Legislation Amendment Bill 2000
Schedule 5 Amendments relating to contributory negligence in contract actions
Schedule 5 Amendments relating to contributory
negligence in contract actions
(Section 3)
Workers Compensation Act 1987 No 70
[1] Section 151N Contributory negligence--generally
Insert after section 151N (1):
(1A) Part 3 (Amendment of doctrine of contributory negligence) of
the Law Reform (Miscellaneous Provisions) Act 1965 applies
in respect of awards of damages as if a reference in that Part to
fault included a reference to an act or omission that amounts to
a breach of a contractual duty of care that is concurrent and
co-extensive with a duty of care in tort.
Explanatory note
Item [1] extends the contributory negligence provisions of the Law Reform (Miscellaneous
Provisions) Act 1965 (with certain modifications made by section 151N of the 1987 Act)
to an action to recover damages in a work injury case when the action is an action for
breach of contract founded on a breach of a contractual duty of care. Those provisions
provide that contributory negligence is not a defence in an action and that the damages
to be awarded are to be reduced having regard to the claimant's share in the
responsibility for the damage.
The amendment is in response to the High Court's decision in Astley v Austrust Limited
[1999] HCA 6 that similar provisions in the law of South Australia applied only to claims
for damages in tort and did not apply to claims founded on a breach of a contractual duty
of care.
[2] Schedule 6 Savings, transitional and other provisions, Part 14
Provisions relating to common law remedies
Insert as clause 13 of Part 14 of Schedule 6:
13 Contributory negligence in contract actions--2000 amending Act
The amendment made to section 151N by the Workers
Compensation Legislation Amendment Act 2000 applies in
respect of injuries received before or after the commencement
of the amendment, but does not apply in respect of:
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to contributory negligence in contract actions Schedule 5
(a) any award of, or compromise or settlement of a claim
for, damages made before the commencement of the
amendment, or
(b) any court proceedings commenced before that
commencement.
Explanatory note
Item [2] inserts a transitional provision that applies the amendment made by item [1] to
injuries received before or after the commencement of the amendment except when an
award, compromise or settlement of the claim has been made, or proceedings on the
claim have been commenced, before that commencement.
Page 29
Workers Compensation Legislation Amendment Bill 2000
Schedule 6 Amendments relating to disputes about liability
Schedule 6 Amendments relating to disputes about
liability
(Section 3)
Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 74 Insurers to give notice and reasons when liability disputed
Insert after section 74 (2):
(2A) In the case of a claim for compensation under this Act, a
statement of reasons in a notice under this section is to indicate
the provision of the workers compensation legislation on which
the insurer relies to dispute liability.
(2B) A notice under this section must be expressed in plain
language.
[2] Section 74 (3A)
Insert after section 74 (3):
(3A) The regulations may create offences in connection with any
failure to comply with this section.
Note. A dispute as to liability to commence weekly payments within the
requisite period after a claim for compensation is made must be notified
in accordance with this section (See section 93 and the offence arising
under section 94).
Explanatory note
Items [1] and [2] make further provision with respect to notices by insurers disputing
liability in order to make the notices more informative and to provide for criminal
sanctions.
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to disputes about liability Schedule 6
[3] Section 93 Claims for weekly compensation--commencement of
payments
Insert "in accordance with section 74" after "disputes liability" in section
93 (2).
Explanatory note
Section 93 (1) requires weekly payments of compensation to commence as soon as
practicable (but in any case within 21 days) after a claim is made unless the person on
whom the claim is made disputes liability. The amendment requires the person to comply
with the requirements of section 74 when disputing liability (requiring the insurer to give
notice of a disputed claim containing reasons and other relevant particulars). Accordingly,
if an appropriate notice is not given for disputing a claim, the offence under section 94 of
not commencing weekly payments within the time required will apply (maximum penalty:
50 penalty units).
Page 31
Workers Compensation Legislation Amendment Bill 2000
Schedule 7 Amendments relating to medical reports
Schedule 7 Amendments relating to medical reports
(Section 3)
Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 127 Admissibility of medical reports
Insert after section 127 (2):
(2A) Subsection (1) is also subject to any provision of the rules of
the Compensation Court or the regulations relating to the
number of medical reports that may be admitted in evidence in
connection with a claim or any aspect of a claim.
[2] Section 130 Rules of Court and regulations with respect to medical
evidence
Insert after section 130 (b):
(b1) limiting the number of medical reports in connection
with a claim or any aspect of a claim and, in particular:
(i) limiting the number of medical reports that may
be produced in connection with the conciliation
of a dispute, and
(ii) limiting the number of medical reports that may
be admitted in evidence in proceedings before
the Compensation Court, and
(iii) limiting the medical reports that may be so
admitted in evidence to those produced in
connection with the conciliation of the dispute
concerned, and
(iv) excluding the costs of excess medical reports
from the costs recoverable in connection with a
claim (whether the reports were obtained for the
purposes of making or dealing with a claim or
for the purposes of conciliation or court
proceedings), and
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to medical reports Schedule 7
[3] Section 130 (2)
Insert at the end of section 130:
(2) This section only authorises rules of the Compensation Court
in connection with proceedings before that Court or matters
referred to a medical panel or medical referee.
Explanatory note
The amendments will enable the regulations and (if appropriate) rules of court to limit the
number of medical reports in respect of a claim for compensation or any particular aspect
of the claim. Provision will be able to be made to limit the number of medical reports
produced for conciliation or court proceedings and to limit the medical reports in court
proceedings to those produced in the relevant conciliation proceedings. In addition,
provision will be able to be made to exclude the cost of excess reports from an award for
costs in connection with a workers compensation claim. Section 113 (3) also authorises
the making of regulations that prevent legal practitioners from being paid or recovering
costs incurred in obtaining excess medical reports that cannot be used for the purpose
for which they were obtained.
Page 33
Workers Compensation Legislation Amendment Bill 2000
Schedule 8 Amendments relating to information exchange
Schedule 8 Amendments relating to information
exchange
(Section 3)
8.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 79A
Insert after section 79:
79A Exchange of information before conciliation
(1) A party (the applicant) to a dispute who refers the dispute for
conciliation must, at the time it is referred, provide the
following material to the Principal Conciliator:
(a) a list identifying the documents on which the applicant
proposes to rely in connection with the conciliation of
the dispute,
(b) a list identifying all other documents that the applicant
has that are relevant to the dispute,
(c) such other documents or information as the regulations
may require the applicant to provide.
(2) The applicant must also provide that material to the other party
(the respondent) to the dispute at or before the time the dispute
is referred for conciliation.
(3) Within 7 days after the applicant provides that material to the
respondent, the respondent must provide the following material
to the applicant and to the Principal Conciliator:
(a) a list identifying the documents on which the respondent
proposes to rely in connection with the conciliation of
the dispute,
(b) a list identifying all other documents that the respondent
has that are relevant to the dispute,
(c) such other documents or information as the regulations
may require the respondent to provide.
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to information exchange Schedule 8
(4) A party to a dispute who fails without reasonable excuse to
comply with a requirement of this section is guilty of an
offence.
Maximum penalty: 50 penalty units.
(5) A document that a party to a dispute has failed to identify in a
list provided as required by this section (being a document that
the person has when the list is required to be provided) is not
admissible on behalf of the party in proceedings on such a
dispute before a conciliator or the Compensation Court.
(6) Subsections (4) and (5) do not apply if the party is a worker
unless it is established that the worker was represented by a
legal practitioner or agent (as defined in section 131) at the
relevant time.
(7) The regulations may provide for exceptions to subsection (5).
In particular, the regulations may authorise a conciliator or the
Compensation Court to permit the admission in proceedings
before the conciliator or Court in specified circumstances of a
document that would otherwise be not admissible under that
subsection.
(8) If a conciliator is satisfied that a party to a dispute has failed
without reasonable excuse to comply with a requirement of this
section, the conciliator may:
(a) refer the matter to the Authority, and
(b) note the matter in a conciliation certificate issued by the
conciliator in respect of the dispute (together with
details of the documents to which the failure relates).
Note. Examples of the documents to which this section applies are
medical reports, investigators' reports, rehabilitation providers' reports and
reports of assessments under section 40A (Assessment of incapacitated
worker's ability to earn) of the 1987 Act.
Explanatory note
Item [1] requires the parties to the conciliation of a dispute about compensation to provide
a list of the evidence on which they propose to rely (and other relevant evidence that they
have) when the dispute is referred for conciliation. The failure by a party to provide the
required evidence lists will be an offence and will result in the party being unable to rely
on that evidence to dispute liability or to use that evidence in conciliation proceedings or
proceedings in the Compensation Court.
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Workers Compensation Legislation Amendment Bill 2000
Schedule 8 Amendments relating to information exchange
[2] Section 80 Power of conciliator to require information
Insert "or to another party to the dispute" after "to the conciliator" wherever
occurring in section 80 (1) (a) and (b).
Explanatory note
Item [2] broadens the existing power of a conciliator to order a party to conciliation of a
dispute to provide documents or information to the conciliator to include a power to order
that the documents or information be provided to another party to the dispute also.
[3] Section 80 (6)
Insert "or a conciliator" after "Court" where firstly occurring.
[4] Section 80 (6)
Insert "or the conciliator" after "Court" where secondly occurring.
Explanatory note
Items [3] and [4] extend to proceedings before a conciliator the prohibition against
admitting evidence in proceedings before the Compensation Court if a party has failed
to produce the evidence when required to do so by direction of a conciliator.
[5] Section 81A
Insert after section 81:
81A Parties to conciliation to provide copies of documents before
conciliation conference
(1) At least 7 days before a conciliation conference on the dispute,
each party to the dispute must provide to the other party and to
the conciliator a copy of any documents on which the party
proposes to rely in connection with the conciliation of the
dispute.
(2) A party to a dispute who fails without reasonable excuse to
comply with a requirement of this section is guilty of an
offence.
Maximum penalty: 50 penalty units.
(3) Subsection (2) does not apply if the party is a worker unless it
is established that the worker was represented by a legal
practitioner or agent (as defined in section 131) at the relevant
time.
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to information exchange Schedule 8
(4) Any document that a party has that is not provided by the party
as required by this section is not admissible on behalf of the
party in proceedings on such a dispute before a conciliator or
the Compensation Court.
(5) The regulations may provide for exceptions to subsection (4).
In particular, the regulations may authorise a conciliator or the
Compensation Court to permit the admission in proceedings
before the conciliator or Court in specified circumstances of a
document that would otherwise be not admissible under that
subsection.
(6) If a conciliator is satisfied that a party to a dispute has failed
without reasonable excuse to comply with a requirement of this
section, the conciliator may:
(a) refer the matter to the Authority, and
(b) note the matter in a conciliation certificate issued by the
conciliator in respect of the dispute (together with
details of the documents to which the failure relates).
(7) Nothing in this section affects any power of the conciliator
under section 80 (Power of conciliator to require information)
or 81 (Power of conciliator to provide information and
documents to a party).
Note. Examples of the documents to which this section applies are
medical reports, investigators' reports, rehabilitation providers' reports and
reports of assessments under section 40A (Assessment of incapacitated
worker's ability to earn) of the 1987 Act.
Explanatory note
Item [5] requires a party to the conciliation of a dispute to provide the other party with a
copy of the documentary evidence on which the party proposes to rely at conciliation at
least 7 days before the conciliation conference. A failure by a party to provide that
evidence will result in the party being unable to rely on that evidence to dispute liability
and being unable to use that evidence in conciliation proceedings or proceedings in the
Compensation Court.
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Workers Compensation Legislation Amendment Bill 2000
Schedule 8 Amendments relating to information exchange
8.2 Workers Compensation Act 1987 No 70
Schedule 6, Part 10 Provisions relating to conciliation officers and
weekly payments of compensation
Insert as clause 6 of Part 10 of Schedule 6:
6 2000 amending Act--providing copies of evidence before
conciliation
Sections 79A and 81A of the 1998 Act do not apply to a
dispute referred for conciliation before the commencement of
those sections.
Explanatory note
The amendment inserts a transitional provision that makes it clear that the new
provisions inserted by this Schedule do not apply in respect of the conciliation of disputes
referred for conciliation before the new provisions commence.
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to liability involving multiple managed fund insurers Schedule 9
Schedule 9 Amendments relating to liability involving
multiple managed fund insurers
(Section 3)
Workers Compensation Act 1987 No 70
[1] Section 18 Special insurance provisions relating to occupational
diseases
Omit section 18 (3). Insert instead:
(3) The provisions of this section are subject to section 22D.
Explanatory note
Item [1] amends section 18 as a consequence of the enactment of proposed section 22D
by item [4].
[2] Section 22A Further provisions concerning apportionment of liability
under section 22
Omit "The person" from section 22A (5).
Insert instead "Subject to section 22D, the person".
Explanatory note
Item [2] amends section 22A (5) as a consequence of the enactment of proposed
section 22D by item [4].
[3] Section 22A (8)
Omit the subsection.
Explanatory note
Item [3] omits section 22A (8) as a consequence of the enactment of proposed
section 22D by item [4].
Page 39
Workers Compensation Legislation Amendment Bill 2000
Schedule 9 Amendments relating to liability involving multiple managed fund insurers
[4] Section 22D
Insert after section 22C:
22D Provisions concerning liability involving multiple managed fund
insurers
(1) This section applies to an injury or series of injuries:
(a) to which any one or more of sections 15, 16, 17 and 22
apply or are alleged to apply, and
(b) assuming that compensation is payable in relation to
that injury or series of injuries, more than one managed
fund insurer is or may become liable to make or
contribute to a payment of compensation in accordance
with any one or more of those sections,
and so applies whether or not any other insurer is or may
become liable to make or contribute to such a payment, and
whether or not any employer is or may become liable as a self-
insurer, in respect of that injury or series of injuries.
(2) Subject to the regulations, any compensation or contribution
that would (but for this subsection) be payable in accordance
with any one or more of sections 15, 16, 17 and 22 by
managed fund insurers in relation to an injury or series of
injuries is to be paid by the primary insurer:
(a) with no contribution from any other managed fund
insurer (or from any employer insured by a managed
fund insurer) under section 15, 16 or 17, and
(b) with no apportionment of liability between managed
fund insurers (or between any employers to the extent to
which they are insured by managed fund insurers) under
section 22.
(3) Subject to the regulations, in and for the purposes of any
proceedings under this Act or the 1998 Act in relation to an
injury or series of injuries, other than proceedings under
Division 2 of Part 7:
(a) the primary insurer is, alone among the managed fund
insurers, a party to the proceedings, and
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to liability involving multiple managed fund insurers Schedule 9
(b) the primary insurer is subrogated to the rights of:
(i) the other managed fund insurers who (but for
paragraph (a)) would have been party to the
proceedings, and
(ii) any employers insured by those other managed
fund insurers,
in respect of that injury or series of injuries, and
(c) in the case of an injury or series of injuries in respect of
which:
(i) an employer that is a self-insurer, or
(ii) an insurer that is not a managed fund insurer,
is or may become liable to make or contribute to a
payment of compensation, the managed fund insurers
are taken to be a single insurer.
(4) The primary insurer has, by operation of this subsection:
(a) all of the powers, authorities, duties and functions, and
all of the protections and immunities, that, by or under
this Act or the 1998 Act, the regulations under those
Acts or a policy of insurance, are conferred or imposed
on an insurer, or
(b) all of the powers, authorities, duties and functions, and
all of the protections and immunities, that, by or under
this Act or the 1998 Act, the regulations under those
Acts or a policy of insurance, are conferred or imposed
on an employer, to the extent to which they may, under
this Act or the 1998 Act, the regulations under those
Acts or a policy of insurance, attach to or be exercised
or performed by an insurer,
in relation to an injury or series of injuries.
(5) Without limiting subsection (4):
(a) the primary insurer may make any request or
requirement of an employer or worker that an insurer is
empowered to make under the provisions of this Act or
the 1998 Act, the regulations under those Acts or a
policy of insurance, and
(b) the employer or worker to whom such a request or
requirement is made has the same obligations to comply
with the request or requirement as if it had been made
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Workers Compensation Legislation Amendment Bill 2000
Schedule 9 Amendments relating to liability involving multiple managed fund insurers
by an insurer under the provisions of this Act or the
1998 Act, the regulations under those Acts or a policy
of insurance,
and the provisions of this Act or the 1998 Act, the regulations
under those Acts or a policy of insurance, as the case may be,
apply accordingly.
(6) If the primary insurer gives a written direction:
(a) to a managed fund insurer, or
(b) to an employer who is, or has at any relevant time, been
insured by the primary insurer or any other managed
fund insurer,
in relation to an injury or series of injuries, being a direction
requiring the production of any document or the provision of
any information in relation to the injury or series of injuries, the
insurer or employer to whom the direction is given must
comply with the direction, within such reasonable time as is
specified in the direction, to the fullest extent to which it is
practicable for the insurer or employer to do so.
Maximum penalty: 50 penalty units.
(7) For the purposes of section 243 of the 1998 Act, the production
of any document or the provision of any information to a
managed fund insurer by an employer or another managed fund
insurer, in connection with the operation of this section, is
taken to have been made in connection with the administration
or execution of this Act.
(8) The regulations may provide for the modification of the other
provisions of this Act or the 1998 Act with respect to any
matter arising under this section.
(9) For the purposes of this section, a managed fund insurer is
liable to make or contribute to a payment of compensation if,
under a policy of insurance, it is liable to indemnify an
employer in relation to the making of, or contribution to, such
a payment.
(10) Subject to the regulations:
(a) anything done by or in relation to a managed fund
insurer (other than the primary insurer) for the purposes
of this Act or the 1998 Act on the basis that the insurer
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Workers Compensation Legislation Amendment Bill 2000
Amendments relating to liability involving multiple managed fund insurers Schedule 9
is the primary insurer is taken to have been done by or
in relation to the primary insurer, an
(b) anything done by or in relation to the primary insurer
for the purposes of this Act or the 1998 Act on the basis
that this section applies to an injury or series of injuries
is, if it is subsequently determined that this section does
not apply to that injury or series of injuries, taken to
have been done by or in relation to the managed fund
insurer by or in relation to whom it would (but for this
section) have been permitted or required to be done.
(11) For the purpose of calculating the insurance premiums payable
by employers insured by managed fund insurers, their claims
histories are to be determined, subject to the regulations, on the
basis of the following assumptions:
(a) that the contributions that (but for this section) would
have become payable by them are payable, without the
need for a determination or agreement as to the amount
of any such contribution,
(b) that the liability that (but for this section) would have
been apportioned between any employers or managed
fund insurers under section 22 has been apportioned,
without the need for a determination or agreement as to
any such apportionment.
(12) In this section:
managed fund insurer means an insurer to which Division 4
of Part 7 applies.
primary insurer, in relation to an injury or series of injuries,
means:
(a) unless and until some other managed fund insurer is
designated as the primary insurer under paragraph (b),
the managed fund insurer under the most recent policy
of insurance with respect to that injury or those injuries,
or
(b) if in a particular case or class of cases the Authority
designates some other managed fund insurer as the
primary insurer for the purposes of this section (being a
managed fund insurer under a policy of insurance with
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Workers Compensation Legislation Amendment Bill 2000
Schedule 9 Amendments relating to liability involving multiple managed fund insurers
respect to that injury or any of those injuries), the
managed fund insurer so designated.
proceedings, in relation to an injury or series of injuries,
includes anything done pursuant to a claim made under this
Act or the 1998 Act in relation to the injury or series of
injuries, including (without limitation) any negotiation and
conciliation with respect to the claim.
Explanatory note
Item [4] inserts a new section 22D into the 1987 Act. The new section applies in
situations in which there are multiple managed fund insurers for one or more injuries, and
allows all of the insurers to be represented by one of them (the primary insurer). This
includes situations where the managed fund insurers cover either different employers or
the same employer at different times. The new section then makes provision (in a similar
way to current section 22A (8)) for the payment of compensation in such situations, both
where liability is disputed and where liability is undisputed.
Under this arrangement, the primary insurer's role will include the duty to properly
represent the interests of relevant employers insured by the other managed fund insurers,
as well as the interests of the employer actually insured by the primary insurer. Any
compensation that is payable to the worker in those circumstances (and any related
contributions) should be paid by, and any negotiations or defence of proceedings required
by the claim should be conducted by, the primary insurer in the name of the relevant
employer or employers.
The extended role given by the amendments to the primary insurer applies only in relation
to periods of insurance covered by managed fund insurers, so that if, for example, an
employer was at another time covered by a non-managed fund insurer or operating as
a self-insurer, that insurer's or self-insurer's separate right of representation is not
affected.
As with the current procedure, there is to be no actual apportionment between managed
fund insurers (and the employers insured by them) but merely a notional apportionment
for the purpose of calculating the claims histories of the employers concerned. However,
apportionment (or contributions) involving other parties will still be the subject of
agreement by the primary insurer or determination under normal provisions. Employers
whose interests in respect of a claim are represented by the primary insurer will continue
to be able to appeal under existing provisions against their insurer's premium
assessment.
The primary insurer's role will apply even at the stage when it is only alleged (by the
worker's claim or by an insurer or self-insurer following the claim) that 2 or more managed
fund insurers are concurrently liable in respect of the claim. That is because it is
sometimes not possible to establish whether the provisions relating to concurrent liability
(section 15, 16, 17 or 22 of the 1987 Act) apply until court proceedings are finalised. The
proposed provisions aim to avoid multiple representation of managed fund insurers in
such proceedings.
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Amendments relating to liability involving multiple managed fund insurers Schedule 9
[5] Section 68B Deductions under section 68A--operation of sections 15,
16, 17 and 22
Insert after section 68B (1):
(1A) Subsection (1) extends to any liability for compensation that,
but for section 22D, would be apportionable under section 22.
Explanatory note
Item [5] amends section 68B of the 1987 Act so as to extend subsection (1) of that
section to any liability for compensation that, but for proposed section 22D, would be
apportionable under section 22.
[6] Schedule 6, Part 2 Provisions relating to liability for compensation
Insert as clause 10 of Part 2 of Schedule 6:
10 Claims involving multiple managed fund insurers
(1) Subject to subclauses (2) and (3), the provisions of section 22D
and 68B (1A), as inserted by the Workers Compensation
Legislation Amendment Act 2000, extend:
(a) to any injury received before the commencement of
those provisions, and
(b) to any series of injuries where the first injury was
received before the commencement of those provisions,
and (in the case of a series of injuries) so extend even if the
first such injury was received before the commencement of this
Act.
(2) The provisions of section 22D (as so inserted) do not apply to
or in respect of an injury (other than one of a series of injuries)
if, before the commencement of those provisions:
(a) a managed fund insurer has entered into a contribution
agreement under section 15 or 16 in relation to the
injury, or
(b) a worker or other person has received or agreed to
receive compensation in relation to the injury, or
(c) court proceedings have been commenced or determined
in relation to the injury.
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(3) The provisions of section 22D and 68B (1A) (as so inserted) do
not apply to or in respect of any series of injuries if, before the
commencement of those provisions:
(a) a managed fund insurer has entered into an
apportionment agreement under section 22 in relation to
that series of injuries, or
(b) a worker or other person has received or agreed to
receive compensation in respect of any matter referred
to in section 22 (1) (a), (b) or (c) resulting from that
series of injuries, or
(c) court proceedings have been commenced or determined
in respect of any matter referred to in section 22 (1) (a),
(b) or (c) resulting from that series of injuries.
Explanatory note
Item [6] inserts a transitional provision to apply the amendment made by this Schedule
to injuries arising before the commencement of the amendments.
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Schedule 10 Amendments relating to recovery from
directors of uninsured corporations
(Section 3)
10.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 146 Recovery of double premiums from employer not obtaining
policy of insurance
Insert after section 146 (7):
(7A) For the purposes of subsection (7), a court that makes a finding
that an employer is guilty of an offence under section 144
without proceeding to a conviction is taken to have convicted
the employer of the offence.
Explanatory note
Section 146 of the 1998 Act entitles the Authority to recover from an employer who fails
to take out workers compensation insurance twice the amount of premium that would
have been payable. Subsection (7) allows a court that convicts an employer for the
offence of failing to insure to order the employer to pay the Authority the amount that the
Authority is entitled to recover. The amendment made by item [1] provides that for this
purpose a finding that a person is guilty of that offence without proceeding to a conviction
is considered to be a conviction for the offence.
[2] Section 146A
Insert after section 146:
146A Recover from directors of corporation not obtaining policy of
insurance
(1) If the Authority is entitled to recover an amount from a
corporation under section 146 (even if the corporation has
ceased to exist) and the amount is not recoverable from the
corporation, the Authority is entitled to recover the amount
from a person who was a culpable director of the corporation
at the relevant time.
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(2) An amount is considered to be not recoverable from a
corporation if the Authority certifies that it will be unable or
unlikely to recover the amount from the corporation by
reasonable efforts at recovery, whether because the corporation
is being wound up and is unable to pay its debts, or otherwise.
(3) A person is a culpable director of a corporation at the relevant
time if the person was a director of the corporation at any time
during the period in respect of which the corporation failed to
obtain or maintain in force the policy of insurance to which the
entitlement of the Authority relates (whether or not the
corporation has been proceeded against or convicted of an
offence in respect of that failure).
(4) A person is not a culpable director of a corporation if the
person establishes that:
(a) the corporation failed to obtain or maintain the policy of
insurance concerned without the person's knowledge, or
(b) the person was not in a position to influence the
conduct of the corporation in relation to that failure, or
(c) the person, being in such a position, used all due
diligence to prevent the failure by the corporation.
(5) If there is a right of recovery against more than one director of
a corporation in respect of the same amount, the right is a right
against all those directors jointly and severally.
(6) A director from whom an amount is recovered under this
section is entitled to recover the amount from the corporation.
Explanatory note
Section 144 of the Act requires employers to obtain and maintain workers compensation
insurance. If an employer fails to do so, section 146 entitles the Authority to recover from
the employer double the insurance premiums evaded by the employer. Item [2] inserts
a new provision that will enable the Authority to recover those double premiums from the
directors of the employer when the employer is a corporation and the amount is not
recoverable from the corporation.
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[3] Section 171 Employers evading payment of correct premiums
Omit section 171 (1). Insert instead:
(1) If the Authority finds, having regard to information obtained
under section 170 or otherwise, an amount to be due and
payable by an employer to an insurer as a premium or balance
of premium in respect of the issue or renewal of a policy of
insurance (whether or not the policy is still in force), the
Authority may order the employer to pay that amount to the
insurer.
Explanatory note
Item [3] restates the provision of the Act that authorises the Authority to order an
employer to pay an insurer an amount that the Authority determines is due and payable
as premium or balance of premium under a policy of insurance, so as to remove the
requirement that an application for the order be made to the Authority by the insurer.
[4] Section 171 (5A)(5E)
Insert after section 171 (5):
(5A) In the absence of information that would enable the Authority
to accurately determine the premium that would have been
payable for the issue or renewal of a particular policy of
insurance, the following provisions have effect:
(a) the Authority is entitled to make an estimate of that
premium (based on the information available to the
Authority),
(b) the Authority's estimate is presumed to be accurate as
to the premium that would have been payable and
cannot be challenged on the basis that insufficient
information was available to enable the making of an
accurate assessment, but can be challenged by the
provision of information that enables a more accurate
estimate to be made,
(c) if the Authority's estimate is successfully challenged
and as a result a more accurate estimate is substituted,
the proceedings are not open to challenge merely
because of the inaccurate estimate and may continue to
be heard and be determined on the basis of the
substituted assessment.
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(5B) In determining or estimating a premium for the purposes of this
section, the Authority is required to use the methodology
approved by the Authority under this Chapter for the
calculation of risk premiums (for the purpose of determining or
estimating the risk premium component of the premium) and
to then add to that risk premium amount such amount as the
Authority considers appropriate (by way of notional insurer
loadings and levies and other charges notionally payable by an
insurer) to result in a total premium that fully funds the
liabilities to which the premium relates.
(5C) A court that convicts an employer of an offence under section
169A (Giving false information for premium calculation) may,
on the application of the Authority, order the employer to pay
to the Authority the amount that the court is satisfied the
Authority is entitled to recover from the employer under this
section in respect of the matter to which the offence relates. For
the purposes of this subsection, a court that makes a finding
that an employer is guilty of an offence under section 169A
without proceeding to a conviction is taken to have convicted
the employer of the offence.
(5D) Any amount paid by an employer under such an order is taken
to have been recovered from the employer under subsection (1)
and is to be dealt with accordingly.
(5E) A Local Court cannot order the payment of an amount under
subsection (5C) that when added to the amount of any penalty
imposed for the offence concerned would exceed an amount
equivalent to 500 penalty units.
Explanatory note
Section 171 (4) of the 1998 Act entitles the Authority to recover from an employer double
the amount of insurance premiums that are evaded by the employer by providing the
insurer with false or misleading information to be used to calculate premium. Item [4]
inserts new provisions to facilitate recovery of this amount. The new provisions provide
as follows:
(a) the Authority will be entitled to make an estimate of the premium that should have
been paid in the case,
(b) that estimate is presumed to be accurate and cannot be challenged on the basis
that insufficient information was available but can be challenged by providing
information that allows a more accurate estimate to be made,
(c) if the Authority's estimate is successfully challenged and some other estimate is
substituted, the recovery proceedings are to continue on the basis of the substituted
assessment,
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(d) a court that convicts a person of providing false or misleading information or making
a false declaration in connection with the provision of premium calculation
information can order the convicted person to pay the Authority the amount that the
Authority would be entitled to recover (and for this purpose a finding of guilt without
proceeding to conviction is considered to be a conviction).
[5] Section 171A
Insert after section 171:
171A Recovery from directors of corporation evading payment of
correct premium
(1) If the Authority is entitled to recover an amount from a
corporation under section 171 (4) (even if the corporation has
ceased to exist) and the amount is not recoverable from the
corporation, the Authority is entitled to recover the amount
from a person who was a culpable director of the corporation
at the relevant time.
(2) An amount is considered to be not recoverable from a
corporation if the Authority certifies that it will be unable or
unlikely to recover the amount from the corporation by
reasonable efforts at recovery, whether because the corporation
is being wound up and is unable to pay its debts, or otherwise.
(3) A person is a culpable director of a corporation at the relevant
time if the person was a director of the corporation at the time
that the false or misleading information to which the
entitlement of the Authority relates was provided to the insurer
concerned (whether or not the corporation has been proceeded
against or convicted of an offence in respect of the provision of
that information).
(4) A person is not a culpable director of a corporation if the
person establishes that:
(a) the person did not know that the information provided
by the corporation was false or misleading in a material
particular, or
(b) the person was not in a position to influence the
conduct of the corporation in relation to the provision of
false or misleading information, or
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(c) the person, being in such a position, used all due
diligence to prevent the provision by the corporation of
false or misleading information.
(5) If there is a right of recovery against more than one director of
a corporation in respect of the same amount, the right is a right
against all those directors jointly and severally.
(6) A director from whom an amount is recovered under this
section is entitled to recover the amount from the corporation.
(7) This section does not apply to an entitlement of the Authority
that arises from the provision of false or misleading
information by a corporation before the commencement of this
section.
Explanatory note
Section 171 (4) of the 1998 Act entitles the Authority to recover from an employer double
the amount of insurance premiums that are evaded by the employer by providing the
insurer with false or misleading information to be used to calculate premium. Item [5]
inserts a new provision that will enable the Authority to recover the amount from the
directors of the employer when the employer is a corporation and the amount is not
recoverable from the corporation.
10.2 Workers Compensation Act 1987 No 70
[1] Section 156 Recovery of double premiums from employer not obtaining
policy of insurance
Insert after section 156 (6):
(6A) For the purposes of subsection (6), a court that makes a finding
that an employer is guilty of an offence under section 155
without proceeding to a conviction is taken to have convicted
the employer of the offence.
Explanatory note
Section 156 of the 1987 Act entitles the Authority to recover from an employer who fails
to take out workers compensation insurance twice the amount of premium that would
have been payable. Subsection (6) allows a court that convicts an employer for the
offence of failing to insure to order the employer to pay the Authority the amount that the
Authority is entitled to recover. Item [1] provides that for this purpose a finding that a
person is guilty of that offence without proceeding to a conviction is considered to be a
conviction for the offence.
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[2] Section 156B
Insert after section 156A:
156B Recovery from directors of corporation not obtaining policy of
insurance
(1) If the Authority is entitled to recover an amount from a
corporation under section 156 (even if the corporation has
ceased to exist) and the amount is not recoverable from the
corporation, the Authority is entitled to recover the amount
from a person who was a culpable director of the corporation
at the relevant time.
(2) An amount is considered to be not recoverable from a
corporation if the Authority certifies that it will be unable or
unlikely to recover the amount from the corporation by
reasonable efforts at recovery, whether because the corporation
is being wound up and is unable to pay its debts, or otherwise.
(3) A person is a culpable director of a corporation at the relevant
time if the person was a director of the corporation at any time
during the period in respect of which the corporation failed to
obtain or maintain in force the policy of insurance to which the
entitlement of the Authority relates (whether or not the
corporation has been proceeded against or convicted of an
offence in respect of that failure).
(4) A person is not a culpable director of a corporation if the
person establishes that:
(a) the corporation failed to obtain or maintain the policy of
insurance concerned without the person's knowledge, or
(b) the person was not in a position to influence the
conduct of the corporation in relation to that failure, or
(c) the person, being in such a position, used all due
diligence to prevent the failure by the corporation.
(5) If there is a right of recovery against more than one director of
a corporation in respect of the same amount, the right is a right
against all those directors jointly and severally.
(6) A director from whom an amount is recovered under this
section is entitled to recover the amount from the corporation.
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Schedule 10 Amendments relating to recovery from directors of uninsured corporations
(7) This section does not apply to an entitlement of the Authority
under section 156 that arises from the failure by a corporation
to obtain or maintain insurance in respect of any period before
the commencement of this section.
Explanatory note
Section 155 of the 1987 Act requires employers to obtain and maintain workers
compensation insurance. If an employer fails to do so, section 156 entitles the Authority
to recover from the employer double the insurance premiums evaded by the employer.
Item [2] inserts a new provision that will enable the Authority to recover those double
premiums from the directors of the employer when the employer is a corporation and the
amount is not recoverable from the corporation.
[3] Section 175 Employers evading payment of correct premiums
Omit section 175 (1). Insert instead:
(1) If the Authority finds, having regard to information obtained
under section 174 or otherwise, an amount to be due and
payable by an employer to an insurer as a premium or balance
of premium in respect of the issue or renewal of a policy of
insurance (whether or not the policy is still in force), the
Authority may order the employer to pay that amount to the
insurer.
Explanatory note
Item [3] restates the provision of the Act that authorises the Authority to order an
employer to pay an insurer an amount that the Authority determines is due and payable
as premium or balance of premium under a policy of insurance, so as to remove the
requirement that an application for the order be made to the Authority by the insurer.
[4] Section 175 (6)(7B)
Insert after section 175 (5):
(6) In the absence of information that would enable the Authority
to accurately determine the premium that would have been
payable for the issue or renewal of a particular policy of
insurance, the following provisions have effect:
(a) the Authority is entitled to make an estimate of that
premium (based on the information available to the
Authority),
(b) the Authority's estimate is presumed to be accurate as
to the premium that would have been payable and
cannot be challenged on the basis that insufficient
information was available to enable the making of an
accurate assessment, but can be challenged by the
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provision of information that enables a more accurate
estimate to be made,
(c) if the Authority's estimate is successfully challenged
and as a result a more accurate estimate is substituted,
the proceedings are not open to challenge merely
because of the inaccurate estimate and may continue to
be heard and be determined on the basis of the
substituted assessment.
(7) A court that convicts an employer of an offence under section
173A (Giving false information for premium calculation) may,
on the application of the Authority, order the employer to pay
to the Authority the amount that the court is satisfied the
Authority is entitled to recover from the employer under this
section in respect of the matter to which the offence relates. For
the purposes of this subsection, a court that makes a finding
that an employer is guilty of an offence under section 173A
without proceeding to a conviction is taken to have convicted
the employer of the offence.
(7A) Any amount paid by an employer under such an order is taken
to have been recovered from the employer under subsection (1)
and is to be dealt with accordingly.
(7B) A Local Court cannot order the payment of an amount under
subsection (7) that when added to the amount of any penalty
imposed for the offence concerned would exceed an amount
equivalent to 500 penalty units.
Explanatory note
Section 175 (4) of the 1987 Act entitles the Authority to recover from an employer double
the amount of insurance premiums that are evaded by the employer by providing the
insurer with false or misleading information to be used to calculate premium. Item [4]
inserts new provisions to facilitate recovery of this amount. The new provisions provide
as follows:
(a) the Authority will be entitled to make an estimate of the premium that should have
been paid in the case,
(b) that estimate is presumed to be accurate and cannot be challenged on the basis
that insufficient information was available but can be challenged by providing
information that allows a more accurate estimate to be made,
(c) if the Authority's estimate is successfully challenged and some other estimate is
substituted, the recovery proceedings are to continue on the basis of the substituted
assessment,
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(d) a court that convicts a person of providing false or misleading information or making
a false declaration in connection with the provision of premium calculation
information can order the convicted person to pay the Authority the amount that the
Authority would be entitled to recover (and for this purpose a finding of guilt without
proceeding to conviction is considered to be a conviction).
[5] Section 175A
Insert after section 175:
175A Recovery from directors of corporation evading payment of
correct premium
(1) If the Authority is entitled to recover an amount from a
corporation under section 175 (4) (even if the corporation has
ceased to exist) and the amount is not recoverable from the
corporation, the Authority is entitled to recover the amount
from a person who was a culpable director of the corporation
at the relevant time.
(2) An amount is considered to be not recoverable from a
corporation if the Authority certifies that it will be unable or
unlikely to recover the amount from the corporation by
reasonable efforts at recovery, whether because the corporation
is being wound up and is unable to pay its debts, or otherwise.
(3) A person is a culpable director of a corporation at the relevant
time if the person was a director of the corporation at the time
that the false or misleading information to which the
entitlement of the Authority relates was provided to the insurer
concerned (whether or not the corporation has been proceeded
against or convicted of an offence in respect of the provision of
that information).
(4) A person is not a culpable director of a corporation if the
person establishes that:
(a) the person did not know that the information provided
by the corporation was false or misleading in a material
particular, or
(b) the person was not in a position to influence the
conduct of the corporation in relation to the provision of
false or misleading information, or
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(c) the person, being in such a position, used all due
diligence to prevent the provision by the corporation of
false or misleading information.
(5) If there is a right of recovery against more than one director of
a corporation in respect of the same amount, the right is a right
against all those directors jointly and severally.
(6) A director from whom an amount is recovered under this
section is entitled to recover the amount from the corporation.
(7) This section does not apply to an entitlement of the Authority
that arises from the provision of false or misleading
information by a corporation before the commencement of this
section.
Explanatory note
Section 175 (4) of the 1987 Act entitles the Authority to recover from an employer double
the amount of insurance premiums that are evaded by the employer by providing the
insurer with false or misleading information to be used to calculate premium. Item [5]
inserts a new provision that will enable the Authority to recover the amount from the
directors of the employer when the employer is a corporation and the amount is not
recoverable from the corporation.
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Schedule 11 Amendments relating to recovery of inspection costs
Schedule 11 Amendments relating to recovery of
inspection costs
(Section 3)
11.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
Section 170A
Insert after section 170:
170A Recovery of inspection costs of Authority or insurer when
wages understated
(1) When an inspection by an insurer or a person authorised by the
Authority reveals a significant understatement of wages by an
employer, the insurer or Authority is entitled to recover from
the employer the costs incurred by the Authority or insurer in
connection with that inspection.
(2) An inspection is considered to reveal a significant
understatement of wages by an employer if the inspection
reveals that the employer has, in connection with the
calculation of the premium or balance of premium payable for
the issue or renewal of a policy of insurance, understated by
25% or more the wages paid to workers employed by the
employer.
(3) The amount that the Authority or insurer is entitled to recover
is recoverable in a court of competent jurisdiction as a debt due
to the Authority or insurer.
(4) A certificate issued by the Authority certifying as to the costs
incurred by the Authority or an insurer in connection with such
an inspection is evidence of the matters certified.
(5) This section does not apply in respect of inspections carried out
before the commencement of this section.
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(6) In this section:
inspection means an inspection or audit of an employer's
records carried out under a provision of this Act or the
regulations or of a policy of insurance.
Explanatory note
Proposed section 170A provides for the Authority or an insurer to recover the costs of
inspecting or auditing the records of an employer if the inspection or audit reveals that the
employer has, in connection with the issue or renewal of a workers compensation
insurance policy under the 1998 Act, understated the wages paid to the employer's
workers by 25% or more.
11.2 Workers Compensation Act 1987 No 70
Section 174A
Insert after section 174:
174A Recovery of inspection costs of Authority or insurer when
wages understated
(1) When an inspection by an insurer or a person authorised by the
Authority reveals a significant understatement of wages by an
employer, the insurer or Authority is entitled to recover from
the employer the costs incurred by the Authority or insurer in
connection with that inspection.
(2) An inspection is considered to reveal a significant
understatement of wages by an employer if the inspection
reveals that the employer has, in connection with the
calculation of the premium or balance of premium payable for
the issue or renewal of a policy of insurance, understated by
25% or more the wages paid to workers employed by the
employer.
(3) The amount that the Authority or insurer is entitled to recover
is recoverable in a court of competent jurisdiction as a debt due
to the Authority or insurer.
(4) A certificate issued by the Authority certifying as to the costs
incurred by the Authority or an insurer in connection with such
an inspection is evidence of the matters certified.
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(5) This section does not apply in respect of inspections carried out
made before the commencement of this section.
(6) In this section:
inspection means an inspection or audit of an employer's
records carried out under a provision of this Act or the
regulations or of a policy of insurance.
Explanatory note
Proposed section 174A provides for the Authority or an insurer to recover the costs of
inspecting or auditing the records of an employer if the inspection or audit reveals that the
employer has, in connection with the issue or renewal of a workers compensation
insurance policy under the 1987 Act, understated the wages paid to the employer's
workers by 25% or more.
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Amendments relating to late payment fees on unpaid insurance premiums Schedule 12
Schedule 12 Amendments relating to late payment fees
on unpaid insurance premiums
(Section 3)
12.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 171 Employers evading payment of correct premiums
Omit "as from the date it first became due to be paid" from section 171 (2).
Insert instead "as from the date determined by the Authority as the date the
premium for the issue or renewal of the policy of insurance concerned first
became due and payable to the insurer".
Explanatory note
Section 171 (1) of the Act currently provides that the Authority may order an employer to
pay to the insurer the amount of any premium or balance of premium due and payable
under a policy of insurance. Section 171 (2) requires a late payment fee to be paid on the
amount that the Authority orders be paid. Item [1] makes it clear that the calculation of
late payment fee dates from when the premium for the insurance first became payable
to the insurer (and not from when the Authority orders that the amount unpaid be paid).
[2] Section 171 (4)
Insert "plus the late payment fee provided for by subsection (4A)" after
"twice that amount".
[3] Section 171 (4A)
Insert after section 171 (4):
(4A) The late payment fee at the rate for the time being in force
under section 167 is payable under subsection (4) as from the
date the premium for the issue or renewal of the policy of
insurance concerned first became due and payable to the
insurer.
Explanatory note
Section 171 (4) of the Act currently allows the Authority to recover from an employer who
evades payment of the correct premium on a workers compensation insurance policy by
providing false information twice the amount of premium evaded. Items [2] and [3] require
the payment of a late payment fee on the amount that the Authority can recover, with the
late payment fee dating from when the evaded premium first became due and payable.
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12.2 Workers Compensation Act 1987 No 70
[1] Section 175 Employers evading payment of correct premiums
Omit "as from the date it first became due to be paid" from section 175 (2).
Insert instead "as from the date determined by the Authority as the date the
premium for the issue or renewal of the policy of insurance concerned first
became due and payable to the insurer".
Explanatory note
Section 175 (1) of the Act currently provides that the Authority may order an employer to
pay to the insurer the amount of any premium or balance of premium due and payable
under a policy of insurance. Section 175 (2) requires interest to be paid on the amount
that the Authority orders be paid. Item [1] makes it clear that the calculation of interest
dates from when the premium or balance of premium originally became payable to the
insurer (and not from when the Authority orders that it be paid).
[2] Section 175 (4)
Insert "plus the late payment fee provided for by subsection (4A)" after
"twice that amount".
[3] Section 175 (4A)
Insert after section 175 (4):
(4A) The late payment fee at the rate for the time being in force
under section 172 is payable under subsection (4) as from the
date the premium for the issue or renewal of the policy of
insurance concerned first became due and payable to the
insurer.
Explanatory note
Section 175 (4) of the Act currently allows the Authority to recover from an employer who
evades payment of the correct premium on a workers compensation insurance policy by
providing false information twice the amount of premium evaded. Items [2] and [3] require
the payment of a late payment fee on the amount that the Authority can recover, with the
late payment fee dating from when the evaded premium first became due and payable.
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Amendments relating to certificates of currency with respect to insurance Schedule 13
Schedule 13 Amendments relating to certificates of
currency with respect to insurance
(Section 3)
13.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
Section 155A
Insert after section 155:
155A Certificate of currency
(1) In this section:
certificate of currency means a certificate issued to an
employer by the insurer under a policy of insurance obtained
by the employer that certifies the period (not exceeding 4
months or such other period as may be prescribed by the
regulations) from the date of its issue during which the
employer is insured under the policy, being a certificate that:
(a) is in the form (if any) approved by the Authority, and
(b) states the nature of the business and the number of
workers of the employer, and the amount of the wages
estimated to be payable by the employer, in respect of
which the premium for the policy was determined by
the insurer, and
(c) states such other matters as the Authority may direct
from time to time by notice in writing to insurers.
(2) An employer who is required to obtain a policy of insurance
must, within 5 days of a request to do so by a person
authorised under this section to make the request, produce a
certificate of currency for inspection by the person that certifies
that the employer is insured under the policy at that time.
Maximum penalty: 50 penalty units.
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(3) The following persons are authorised to request an employer to
produce the employer's certificate of currency:
(a) an authorised officer (within the meaning of section
238) or any other officer of the Authority authorised by
the Authority to make such a request,
(b) an authorised industrial officer (within the meaning of
Part 7 of Chapter 5 of the Industrial Relations Act
1996),
(c) any person who has, in the course of or for the purposes
of the person's trade or business, contracted with the
employer for the employer to carry out the whole or part
of any work that the person has undertaken, or who
proposes to enter into such a contract.
Note. Section 20 of the 1987 Act makes a principal liable to pay
compensation for injured workers of a contractor if the contractor has not
taken out a policy of insurance.
(4) The insurer under a current policy of insurance must, at the
request of the employer insured under the policy, issue to the
employer a certificate of currency with respect to the policy
free of charge. The insurer may refuse to issue the certificate if
any premium (or instalment of premium) for the policy is due
and payable pursuant to a written demand for payment and has
not been paid, or the employer is otherwise in default under the
policy.
(5) A person who is insured under a policy of insurance at the time
a request is made under subsection (2) for the production of a
certificate of currency does not commit an offence against that
subsection if the person satisfies the court that an attempt to
obtain a certificate within 5 days of the request for production
was not successful.
(6) A person who fraudulently alters a certificate of currency
issued under this section is guilty of an offence.
Maximum penalty: 50 penalty units.
(7) An employer to whom a certificate of currency is issued under
this section must notify the insurer within 7 days after the
certificate is issued if the certificate contains an error as to the
nature of the business, or the number of workers of the
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employer, in respect of which the premium for the policy was
determined by the insurer.
Maximum penalty: 50 penalty units.
(8) The regulations may make provision for or with respect to:
(a) requiring the supply by an employer to an insurer of
information relevant to the issue of a certificate of
currency to the employer (including information
relevant to the calculation of premium), and
(b) providing that an insurer is not required to issue a
certificate of currency to an employer who has failed to
supply information to the insurer as required by the
regulations.
(9) A certificate of currency issued under this section is evidence
of the matters that it certifies.
Explanatory note
Proposed section 155A provides for the issue by insurers of certificates of currency to
employers, as evidence that an employer has a policy of insurance in force in respect of
the employer's workers. Certain persons (such as WorkCover inspectors, principals for
whom an employer does work, and authorised union representatives) will be able to
demand to see an employer's certificate of currency.
13.2 Workers Compensation Act 1987 No 70
Section 163A
Insert after section 163:
163A Certificate of currency
(1) In this section:
certificate of currency means a certificate issued to an
employer by the insurer under a policy of insurance obtained
by the employer that certifies the period (not exceeding 4
months or such other period as may be prescribed by the
regulations) from the date of its issue during which the
employer is insured under the policy, being a certificate that:
(a) is in the form (if any) approved by the Authority, and
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Schedule 13 Amendments relating to certificates of currency with respect to insurance
(b) states the nature of the business and the number of
workers of the employer, and the amount of the wages
estimated to be payable by the employer, in respect of
which the premium for the policy was determined by
the insurer, and
(c) states such other matters as the Authority may direct
from time to time by notice in writing to insurers.
(2) An employer who is required to obtain a policy of insurance
must, within 5 days of a request to do so by a person
authorised under this section to make the request, produce a
certificate of currency for inspection by the person that certifies
that the employer is insured under the policy at that time.
Maximum penalty: 50 penalty units.
(3) The following persons are authorised to request an employer to
produce the employer's certificate of currency:
(a) an authorised officer (within the meaning of section 238
of the 1998 Act) or any other officer of the Authority
authorised by the Authority to make such a request,
(b) an authorised industrial officer (within the meaning of
Part 7 of Chapter 5 of the Industrial Relations Act
1996),
(c) any person who has, in the course of or for the purposes
of the person's trade or business, contracted with the
employer for the employer to carry out the whole or part
of any work that the person has undertaken, or who
proposes to enter into such a contract.
Note. Section 20 makes a principal liable to pay compensation for injured
workers of a contractor if the contractor has not taken out a policy of
insurance.
(4) The insurer under a current policy of insurance must, at the
request of the employer insured under the policy, issue to the
employer a certificate of currency with respect to the policy
free of charge. The insurer may refuse to issue the certificate if
the premium (or instalment of premium) for the policy is due
and payable pursuant to a written demand for payment and has
not been paid, or the employer is otherwise in default under the
policy.
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(5) A person who is insured under a policy of insurance at the time
a request is made under subsection (2) for the production of a
certificate of currency does not commit an offence against that
subsection if the person satisfies the court that an attempt to
obtain a certificate within 5 days of the request for production
was not successful.
(6) A person who fraudulently alters a certificate of currency
issued under this section is guilty of an offence.
Maximum penalty: 50 penalty units.
(7) An employer to whom a certificate of currency is issued under
this section must notify the insurer within 7 days after the
certificate is issued if the certificate contains an error as to the
nature of the business, or the number of workers of the
employer, in respect of which the premium for the policy was
determined by the insurer.
Maximum penalty: 50 penalty units.
(8) The regulations may make provision for or with respect to:
(a) requiring the supply by an employer to an insurer of
information relevant to the issue of a certificate of
currency to the employer (including information
relevant to the calculation of premium), and
(b) providing that an insurer is not required to issue a
certificate of currency to an employer who has failed to
supply information to the insurer as required by the
regulations.
(9) A certificate of currency issued under this section is evidence
of the matters that it certifies.
Explanatory note
Proposed section 163A provides for the issue by insurers of certificates of currency to
employers, as evidence that an employer has a policy of insurance in force in respect of
the employer's workers. Certain persons (such as WorkCover inspectors, principals for
whom an employer does work, and authorised union representatives) will be able to
demand to see an employer's certificate of currency.
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Schedule 14 Amendments relating to fraud against the workers compensation scheme
Schedule 14 Amendments relating to fraud against the
workers compensation scheme
(Section 3)
14.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 169A
Insert after section 169:
169A Giving false information for premium calculation
A person must not, when supplying information to an insurer
relevant to the calculation of the premium payable for the issue
or renewal of a policy of insurance by the insurer (whether or
not the information is supplied pursuant to a requirement of this
Act or the regulations) supply information that the person
knows is false or misleading in a material particular.
Maximum penalty: 50 penalty units.
Explanatory note
Item [1] creates an offence of knowingly supplying false or misleading information when
supplying information to an insurer to be used in connection with the calculation of the
premium payable for a policy of insurance.
[2] Sections 235A, 235B
Insert after section 235:
235A Fraud on workers compensation scheme
(1) A person who by deception obtains, or attempts to obtain, for
himself or herself any financial advantage in connection with
the workers compensation scheme under this Act or the 1987
Act is guilty of an offence if the person knows or has reason to
believe that the person is not eligible to receive that financial
advantage.
Maximum penalty: 500 penalty units or imprisonment for 2
years, or both.
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(2) A person who by deception obtains, or attempts to obtain, for
another person any financial advantage in connection with the
workers compensation scheme under this Act or the 1987 Act
is guilty of an offence if the person knows or has reason to
believe that the other person is not eligible to receive that
financial advantage.
Maximum penalty: 500 penalty units or imprisonment for 2
years, or both.
(3) A person is not liable to be convicted of an offence against this
section and any other provision of this Act or the 1987 Act as
a result of the same conduct.
(4) In this section:
deception means any deception, by words or other conduct, as
to fact or as to law, including the making of a statement or the
production of a document that is false or misleading.
financial advantage includes a financial advantage for an
injured worker (or a person who claims to be an injured
worker), an employer, an insurer or a medical or other service
provider.
235B Remedy available where claim fraudulent
(1) This section applies to a claimant or insurer if it is established
that, for the purpose of obtaining a financial advantage, the
claimant or insurer did or omitted to do anything (including the
making of a statement) concerning an injury or any claim
relating to an injury with knowledge that the doing of the thing
or the omission to do the thing was false or misleading.
(2) If this section applies to a claimant:
(a) a person who has a liability in respect of a payment,
settlement, compromise or judgment relating to the
claim is relieved from that liability to the extent of the
financial advantage so obtained by the claimant, and
(b) a person who has paid an amount to the claimant in
connection with the claim (whether under a settlement,
compromise or judgment, or otherwise) is entitled to
recover from the claimant the amount of the financial
advantage so obtained by the claimant and any costs
incurred in connection with the claim.
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(3) If this section applies to an insurer, the claimant is entitled to
recover from the insurer as a debt the amount of the financial
advantage so obtained by the insurer and any costs incurred by
the claimant in connection with the claim.
Explanatory note
Item [2] inserts 2 new sections dealing with fraud. Proposed section 235A creates a
general fraud offence with respect to persons who obtain a financial advantage by
deception from the workers compensation scheme. The offence is not limited to injured
workers. Proposed section 235B provides for the recovery from a fraudulent claimant and
others of a fraudulently obtained financial advantage.
14.2 Workers Compensation Act 1987 No 70
Section 173A
Insert after section 173:
173A Giving false information for premium calculation
A person must not, when supplying information to an insurer
relevant to the calculation of the premium payable under a
policy of insurance issued or renewed or to be issued or
renewed by the insurer (whether or not the information is
supplied pursuant to a requirement of this Act or the
regulations) supply information that the person knows is false
or misleading in a material particular.
Maximum penalty: 50 penalty units.
Explanatory note
The amendment creates an offence of knowingly supplying false or misleading
information when supplying information to an insurer to be used in connection with the
calculation of the premium payable for a policy of insurance.
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Amendments relating to powers of inspectors Schedule 15
Schedule 15 Amendments relating to powers of
inspectors
(Section 3)
15.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 238 Powers of entry and inspection by officers of Authority
Omit "(not being a dwelling-house)" from section 238 (2) wherever
occurring.
Explanatory note
Item [1] is consequential on the amendment made by item [3] which inserts a new
provision restricting entry to residential premises under a power of entry.
[2] Section 238 (2) (h)
Insert after section 238 (2) (g):
(h) require an employer, insurer or other person, by notice
in writing served on the person, to produce to the
authorised officer for inspection (in accordance with the
notice) any record that the authorised officer has
reasonable grounds to believe that the person is capable
of producing in relation to a possible contravention of
this Act, the 1987 Act or the regulations under those
Acts.
Explanatory note
Item [2] will enable authorised officers of the Authority to request the production of
relevant records by notice in writing instead of only by a demand made after entry into
premises.
[3] Section 238 (4)
Omit the subsection. Insert instead:
(4) The powers of entry conferred by this section are not
exercisable in relation to any part of premises used only for
residential purposes except:
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(a) with the permission of the occupier of the premises, or
(b) under the authority conferred by a search warrant.
Explanatory note
Section 238 (4) of the Act currently provides that any person has a privilege to refuse to
answer a question that might incriminate the person. A new provision with respect to
self-incrimination is inserted by item [4] (proposed section 238B). Section 238 (4)
becomes a provision that imposes restrictions on the use of a power of entry to enter
residential premises.
[4] Sections 238A238C
Insert after section 238:
238A Search warrant
(1) An authorised officer may apply to an authorised justice for a
search warrant if the officer has reasonable grounds for
believing that a provision of this Act, the 1987 Act or the
regulations under those Acts has been or is being or is about to
be contravened in or about any premises.
(2) An authorised justice to whom an application is made under
this section may, if satisfied that there are reasonable grounds
for doing so, issue a search warrant authorising the authorised
officer named in the warrant:
(a) to enter the premises, and
(b) to search the premises for evidence of a contravention
of this Act, the 1987 Act or the regulations under those
Acts, and
(c) to exercise in the premises any powers conferred on the
officer under section 238.
(3) Part 3 of the Search Warrants Act 1985 applies to a search
warrant issued under this section.
(4) In this section:
authorised justice has the same meaning as it has in the Search
Warrants Act 1985.
authorised officer has the same meaning as it has in section
238.
premises has the same meaning as it has in section 238.
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238B Protection from incrimination
(1) Self-incrimination not an excuse
A person is not excused from a requirement under section 238
to produce a record or statement or to answer a question on the
ground that the record, statement or answer might incriminate
the person or make the person liable to a penalty.
(2) Answer not admissible if objection made
However, any answer given by a natural person in compliance
with a requirement under section 238 is not admissible in
evidence against the person in criminal proceedings (except
proceedings for an offence under section 238) if:
(a) the person objected at the time to doing so on the
ground that it might incriminate the person, or
(b) the person was not warned on that occasion that the
person may object to giving the answer on the ground
that it might incriminate the person.
(3) Records or statements admissible
Any record or statement produced by a person in compliance
with a requirement under section 238 is not inadmissible in
evidence against the person in criminal proceedings on the
ground that the record or statement might incriminate the
person.
(4) Further information
Further information obtained as a result of a record or
statement produced or answer given in compliance with a
requirement under section 238 is not inadmissible on the
ground:
(a) that the record, statement or answer had to be produced
or given, or
(b) that the record, statement or answer might incriminate
the person.
238C Authorised officer may request assistance
(1) A police officer may accompany and take all reasonable steps
to assist an authorised officer in the exercise of the authorised
officer's functions under this Act:
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(a) in executing a search warrant issued under
section 238A, or
(b) if the authorised officer reasonably believes that he or
she may be obstructed in the exercise of those functions.
(2) Any person whom an authorised officer believes to be capable
of providing assistance in the exercise of the officer's functions
under this Act may accompany the officer and take all
reasonable steps to assist the officer in the exercise of the
officer's functions.
(3) Nothing in subsection (1) is to be taken to limit the generality
of section 18 of the Search Warrants Act 1985.
Explanatory note
Item [4] inserts proposed sections 238A238C. Proposed section 238A will enable
authorised officers of the Authority to obtain a search warrant for the purposes of
enforcing the workers compensation legislation. Proposed section 238B applies the rules
on self-incrimination under the occupational health and safety legislation to the workers
compensation legislation (namely that only natural persons have a right to claim privilege
on that ground in respect of providing answers to questions asked by authorised officers
of the Authority). Proposed section 238C authorises a police officer to accompany and
assist an authorised officer exercising functions under the Act.
15.2 Search Warrants Act 1985 No 37
Section 10 Definitions
Insert in alphabetical order of Acts in the definition of search warrant:
section 238A of the Workplace Injury Management and
Workers Compensation Act 1998.
Explanatory note
The amendment is consequential on the amendments made by Schedule 15.1.
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Amendments relating to increased penalties Schedule 16
Schedule 16 Amendments relating to increased
penalties
(Section 3)
16.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 144 Compulsory insurance for employers
Omit "200 penalty units" from section 144 (1).
Insert instead "500 penalty units".
Explanatory note
Section 144 of the 1998 Act requires employers to take out workers compensation
insurance and creates an offence for failure to do so. Item [1] increases the penalty for
the offence from 200 penalty units (currently $22,000) to 500 penalty units (currently
$55,000).
[2] Section 153 Inspection of policies
Omit "20 penalty units" from section 153 (3) and (5) wherever occurring.
Insert instead "50 penalty units".
Explanatory note
Section 153 of the 1998 Act provides for the WorkCover Authority to require an employer
to produce for inspection the employer's workers compensation policy, and requires an
employer to keep the employer's workers compensation policy for a certain period.
Offences are created for a failure to comply with these requirements. Item [2] increases
the penalty of each offence from 20 penalty units (currently $2,200) to 50 penalty units
(currently $5,500).
[3] Section 170 Records relating to wages, contracts etc to be kept and
supplied by employers
Omit "50 penalty units". Insert instead "500 penalty units".
Explanatory note
Section 170 of the 1998 Act imposes obligations on employers with respect to the
keeping of records of workers and the wages paid to workers. Item [3] increases the
penalty for a contravention of the section from 50 penalty units (currently $5,500) to 500
penalty units (currently $55,000).
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[4] Section 238 Powers of entry and inspection by officers of Authority
Omit "50 penalty units" from section 238 (3).
Insert instead "100 penalty units".
Explanatory note
Section 238 of the 1998 Act confers powers on authorised officers of the WorkCover
Authority with respect to the entry of premises, the production and inspection of records
and the asking of questions. Item [4] increases the penalty for an offence under the
section from 50 penalty units (currently $5,500) to 100 penalty units (currently $11,000).
16.2 Workers Compensation Act 1987 No 70
[1] Section 155 Compulsory insurance for employers
Omit "200 penalty units" from section 155 (1).
Insert instead "500 penalty units".
Explanatory note
Section 155 of the 1987 Act requires employers to take out workers compensation
insurance and creates an offence for failure to do so. Item [1] increases the penalty for
the offence from 200 penalty units (currently $22,000) to 500 penalty units (currently
$55,000).
[2] Section 161 Inspection of policies
Omit "20 penalty units" from section 161 (3) and (4) wherever occurring.
Insert instead "50 penalty units".
Explanatory note
Section 161 of the 1987 Act provides for the WorkCover Authority to require an employer
to produce for inspection the employer's workers compensation policy, and requires an
employer to keep the employer's workers compensation policy for a certain period.
Offences are created for a failure to comply with these requirements. Item [2] increases
the penalty of each offence from 20 penalty units (currently $2,200) to 50 penalty units
(currently $5,500).
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[3] Section 174 Records relating to wages, contracts etc to be kept and
supplied by employers
Omit "50 penalty units". Insert instead "500 penalty units".
Explanatory note
Section 174 of the 1987 Act imposes obligations on employers with respect to the
keeping of records of workers and the wages paid to workers. Item [3] increases the
penalty for a contravention of the section from 50 penalty units (currently $5,500) to 500
penalty units (currently $55,000).
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Schedule 17 Amendments relating to insurer penalties
Schedule 17 Amendments relating to insurer penalties
(Section 3)
17.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
Section 183A
Insert after section 183:
183A Imposition of civil penalty on or censure of licensed insurer or
self-insurer
(1) If the Board of Directors of the Authority is satisfied that a
person who is or was a licensed insurer or self-insurer has
contravened its licence or this Act or the regulations or an
insurer agreement under section 9, the Board may:
(a) impose a civil penalty on the person not exceeding
$50,000, or
(b) issue a letter of censure to the person.
(2) Before imposing a civil penalty, the Board is required to give
the person concerned an opportunity to make written
submissions with respect to the alleged contravention, but is
not required to conduct a hearing into the matter.
(3) A civil penalty that has been imposed under this section may be
recovered by the Authority in a court of competent jurisdiction
as a debt due to the Crown.
(4) While a civil penalty imposed under this section remains
unpaid by a licensed insurer or self-insurer, the insurer is not
entitled to be paid any amount that the insurer would otherwise
be entitled to be paid pursuant to an insurer agreement under
section 9.
(5) The Board may cause a letter of censure issued by it under this
section to be published.
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(6) A civil penalty that is paid or recovered is payable into the
WorkCover Authority Fund.
(7) The powers of the Board under this section do not limit any
powers of the Authority under this Act or the Regulations.
Explanatory note
Proposed section 183A provides for the imposition of a civil penalty of up to $50,000 or
the issue of a letter of censure for a contravention by an insurer of its licence, the Act, the
regulations or an insurer agreement under section 9 of the Act.
17.2 Workers Compensation Act 1987 No 70
Section 183A
Insert after section 183:
183A Imposition of civil penalty on or censure of licensed insurer or
self-insurer
(1) If the Board of Directors of the Authority is satisfied that a
person who is or was a licensed insurer or self-insurer has
contravened its licence or this Act or the regulations, the
Board may:
(a) impose a civil penalty on the person not exceeding
$50,000, or
(b) issue a letter of censure to the person.
(2) Before imposing a civil penalty, the Board is required to give
the person concerned an opportunity to make written
submissions with respect to the alleged contravention, but is
not required to conduct a hearing into the matter.
(3) A civil penalty that has been imposed under this section may be
recovered by the Authority in a court of competent jurisdiction
as a debt due to the Crown.
(4) A civil penalty is not to be paid from a statutory fund of the
licensed insurer.
(5) The Board may cause a letter of censure issued by it under this
section to be published.
(6) A civil penalty that is paid or recovered is payable into the
WorkCover Authority Fund.
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(7) The powers of the Board under this section do not limit any
powers of the Authority under this Act or the Regulations.
Explanatory note
Proposed section 183A provides for the imposition of a civil penalty of up to $50,000 or
the issue of a letter of censure for a contravention by an insurer of its licence, the Act or
the regulations.
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Amendment relating to deduction of workers compensation costs from Schedule 18
wages
Schedule 18 Amendment relating to deduction of
workers compensation costs from wages
(Section 3)
Workplace Injury Management and Workers Compensation Act
1998 No 86
Section 233 No contribution from workers
Insert after section 233 (2):
(3) To avoid doubt, a reference in this section to a liability under
this Act includes a reference to a liability to pay a premium for
a policy of insurance.
Explanatory note
Section 233 of the Act prohibits an employer from taking or receiving money from a
worker (such as by deduction from wages) in respect of any liability of the employer
under the workers compensation legislation. The amendment makes it clear that the
prohibition extends to the liability of the employer to pay a premium for a workers
compensation insurance policy.
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Schedule 19 Amendments relating to criminal liability of Crown
Schedule 19 Amendments relating to criminal liability of
Crown
(Section 3)
19.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
Section 7 Act binds Crown
Omit section 7 (2).
Explanatory note
Section 7 of the Act provides that the Act binds the Crown and accordingly government
departments and agencies are subject to the requirements of the Act. Section 7 (2)
provides, however, that the section does not make the Crown (or any of its agencies)
liable to be prosecuted for a criminal offence for contravening the Act. The amendment
removes that exemption from prosecution.
19.2 Workers Compensation Act 1987 No 70
Section 6 Act binds Crown
Omit section 6 (2).
Explanatory note
Section 6 of the Act provides that the Act binds the Crown and accordingly government
departments and agencies are subject to the requirements of the Act. Section 6 (2)
provides, however, that the section does not make the Crown (or any of its agencies)
liable to be prosecuted for a criminal offence for contravening the Act. The amendment
removes that exemption from prosecution.
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Amendments relating to specialised insurers and self-insurers Schedule 20
Schedule 20 Amendments relating to specialised
insurers and self-insurers
20.1 Workers Compensation Act 1987 No 70
[1] Section 3 Definitions
Omit the definition of specialised insurer in section 3 (1).
Insert instead:
specialised insurer means a licensed insurer whose licence is
endorsed with a specialised insurer endorsement.
Explanatory note
Item [1] is a consequential amendment.
[2] Section 177 Applications for licences
Omit section 177 (1) (b). Insert instead:
(b) any body corporate (subject to the regulations) if the
application is conditional on the licence being endorsed
with a specialised insurer endorsement.
Explanatory note
Item [2] provides that any body corporate may (subject to the regulations) apply for a
workers compensation insurance licence with a specialised insurer endorsement. The
granting of such an endorsement is to be the new mechanism for achieving specialised
insurer status under the Act (in place of the existing arrangements applicable under the
current definition of specialised insurer whereby specialised insurers are listed in the
definition or declared by order of the Authority).
[3] Section 177A
Insert after section 177:
177A Special provisions for specialised insurers
(1) An application for a licence under this Division may be made
conditional on the licence being endorsed with a specialised
insurer endorsement.
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Schedule 20 Amendments relating to specialised insurers and self-insurers
(2) The Authority may endorse the licence with a specialised
insurer endorsement but only if the Authority is satisfied that
the insurance business to be carried on pursuant to the licence
will be limited to a particular industry or class of business or
employer, and that:
(a) the applicant is eligible for such an endorsement (as
provided by this section), or
(b) the applicant will issue policies only in respect of
domestic or similar workers.
(3) An applicant for a licence under this Division is eligible for a
specialised insurer endorsement if the Authority is satisfied:
(a) that the insurance business to be carried on pursuant to
the licence will not have an adverse effect on the
efficiency of the workers compensation scheme under
this Act generally, and
(b) that the application is supported by relevant
professional, business and other industry bodies
involved in the particular industry or class of business
or employer concerned, and
(c) that an authority has been granted to the applicant under
section 23 (Authority to commence carrying on
insurance business) of the Insurance Act 1973 of the
Commonwealth and is in force, and
(d) as to such other matters as the Authority considers
relevant.
(4) The Authority may by notice in writing to a licensed insurer
withdraw a specialised insurer endorsement that the licence is
endorsed with if the Authority is of the opinion that the
Authority would not be authorised (on an application for a
licence by the insurer) to endorse the licence with a specialised
insurer endorsement.
(5) The withdrawal of a specialised insurer endorsement is
grounds for the suspension or cancellation of the relevant
licence under this Division.
Explanatory note
Item [3] provides for the requirements to be satisfied before a specialised insurer
endorsement can be granted and provides for the cancellation of the endorsement if
those requirements do not continue to be met.
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[4] Section 208AA
Insert after section 208:
208AA Contributions by employers exiting the managed fund scheme
(1) In this section:
exiting employer means an employer who on or after 1 July
1998 became or becomes:
(a) a self-insurer under this Act or the 1998 Act, or
(b) insured for the purposes of this Act by a specialised
insurer under this Act or the 1998 Act, or
(c) licensed under Part VIIIB of the Safety, Rehabilitation
and Compensation Act 1988 of the Commonwealth
(pursuant to a declaration of eligibility under that Part
made on the basis that the employer is a corporation
carrying on business in competition with a
Commonwealth authority or with another corporation
that was previously a Commonwealth authority).
managed fund insurer means an insurer to which Division 4
of Part 7 applies.
managed fund liabilities of an exiting employer means the
following outstanding liabilities of the exiting employer:
(a) any liabilities of the exiting employer under this Act in
respect of workers employed by the exiting employer
while insured under a policy of insurance issued by a
managed fund insurer,
(b) any liabilities of the exiting employer independently of
this Act (but not including a liability for compensation
in the nature of workers compensation arising under any
Act or other law of another State, a Territory or the
Commonwealth or a liability arising under the law of
another country) for injuries received by workers
employed by the person while insured under a policy of
insurance issued by a managed fund insurer.
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Schedule 20 Amendments relating to specialised insurers and self-insurers
responsible insurer for an exiting employer means:
(a) the exiting employer, except in a case in which
paragraph (b) or (c) applies, or
(b) in the case of an exiting employer that is covered by a
licence under section 211A of this Act or section 192 of
the 1998 Act--the exiting employer and the licence
holder (jointly and severally), or
(c) in the case of an exiting employer that is insured by a
specialised insurer--the specialised insurer that insures
the exiting employer.
(2) The object of this section is to provide for the protection of the
statutory funds of managed fund insurers against deficiencies
that may result from the managed fund liabilities of exiting
employers.
(3) The Authority may by order published in the Gazette require
the responsible insurer for an exiting employer to pay
contributions for the purposes of this section. The order is to
provide for the amount of the required contributions or for the
manner in which they are to be calculated and may require
different contributions to be paid by different responsible
insurers or in respect of different exiting employers.
(4) The following provisions apply in respect of the contributions
required to be paid by such an order:
(a) the responsible insurer for an exiting employer must pay
the required contributions to the Authority for payment
into the Premiums Adjustment Fund,
(b) the required contributions must be paid at such times
and in such manner as the order requires,
(c) if the responsible insurer has not paid a contribution
within the required time, the amount of the contribution
together with a late payment fee calculated at the rate of
15% of that amount per annum compounded quarterly
(or, where another rate is prescribed, that other rate)
may be recovered by the Authority as a debt in any
court of competent jurisdiction,
(d) a certificate executed by the Authority certifying that an
amount specified in the certificate is the amount
recoverable by the Authority under paragraph (c) is
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Amendments relating to specialised insurers and self-insurers Schedule 20
(without proof of its execution by the Authority)
admissible in any proceedings for the purposes of this
section and is evidence of the matters specified in the
certificate.
(5) The Authority may for the purposes of this section enter into an
agreement with the responsible insurer for an exiting employer
under which the responsible insurer agrees to assume the
exiting employer's managed fund liabilities.
(6) When the Authority enters into such an agreement the
following provisions have effect (whether or not there is any
breach of the agreement):
(a) the responsible insurer is not liable to pay any
contribution that would otherwise be payable by the
responsible insurer under this section or under section
174 of the 1998 Act,
(b) a licensed insurer is not liable under any policy of
insurance (despite the terms of the policy) in respect of
any liability that the responsible insurer has agreed to
assume under the agreement with the Authority,
(c) a licensed insurer who would otherwise be liable under
a policy of insurance in respect of any such liability
must comply with any direction of the Authority to
provide information to the responsible insurer with
respect to such a liability and any related claim,
(d) a licensed insurer must pay to the responsible insurer
such amount as the Authority may determine as the
unspent portion of any premium paid by the exiting
employer to the licensed insurer,
(e) the Authority may from time to time direct that the
provisions of the agreement (and the provisions of this
clause) do not apply in respect of a specified claim or
class of claims,
(f) an exiting employer who is a self-insurer is taken to be
a self-insurer in respect of any liability that the exiting
employer has (as responsible insurer) agreed to assume
under the agreement with the Authority.
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Workers Compensation Legislation Amendment Bill 2000
Schedule 20 Amendments relating to specialised insurers and self-insurers
(7) It is a condition of the licence of a licensed insurer that the
licensed insurer must comply with any direction of the
Authority under this section.
Explanatory note
Item [4] inserts a section that provides for the levying of contributions to the Premiums
Adjustment Fund in respect of employers who on or after 1 July 1998 become
self-insurers, become insured by a specialised insurer or become covered under certain
Commonwealth arrangements. The provision provides, as an alternative to the making
of a contribution to the Premiums Adjustment Fund, for the entering into an agreement
with the Authority for the assumption of responsibility for outstanding claims against the
employer that would otherwise be payable by the managed fund insurer who previously
insured the employer.
[5] Schedule 6, Part 15 Provisions relating to insurance
Insert after clause 25 of Part 15 of Schedule 6:
26 Specialised insurers--2000 amendments
(1) In this clause:
existing specialised insurer means an insurer who is a
specialised insurer immediately before the commencement of
this clause.
(2) On the commencement of section 177A (Special provisions for
specialised insurers) of this Act, the licence under this Act of
an existing specialised insurer is taken to have been endorsed
with a specialised insurer endorsement under that section.
(3) The licence under the 1998 Act of an existing specialised
insurer is taken to have been endorsed at the private insurance
start time with a specialised insurer endorsement under section
175A of the 1998 Act.
(4) An existing specialised insurer is taken to be eligible for a
specialised insurer endorsement for the purposes of section
177A of this Act and 175A of the 1998 Act, until the
regulations otherwise provide or the Authority otherwise
directs in a particular case by notice in writing to the
specialised insurer.
(5) The Authority may by order declare a body corporate to be a
body corporate that the Authority is satisfied has acquired the
business undertaking of an existing specialised insurer, and the
effect of such an order is as follows:
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Amendments relating to specialised insurers and self-insurers Schedule 20
(a) the body corporate is taken to be the holder of the
licence held by that existing specialised insurer as a
licensed insurer under this Act or the 1998 Act, as
appropriate, and
(b) the body corporate is taken to be an existing specialised
insurer within the meaning of this clause.
Explanatory note
Item [5] enacts a transitional provision that confers a specialised insurer endorsement on
a workers compensation insurer that is currently a specialised insurer. The eligibility
requirements for a specialised insurer endorsement will not apply to such an insurer until
the regulations otherwise provide or the Authority otherwise directs in a particular case.
20.2 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 4 Definitions
Omit the definition of specialised insurer in section 4 (1).
Insert instead:
specialised insurer means a licensed insurer whose licence is
endorsed with a specialised insurer endorsement.
Explanatory note
Item [1] is a consequential amendment.
[2] Section 175 Applications for licences
Insert at the end of section 175 (1) (b):
, or
(c) any body corporate (subject to the regulations) if the
application is conditional on the licence being endorsed
with a specialised insurer endorsement.
Explanatory note
Item [2] provides that any body corporate may (subject to the regulations) apply for a
workers compensation insurance licence with a specialised insurer endorsement. The
granting of such an endorsement is to be the new mechanism for achieving specialised
insurer status under the Act (in place of the existing arrangements applicable under the
current definition of specialised insurer whereby specialised insurers are listed in the
definition or declared by order of the Authority).
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Workers Compensation Legislation Amendment Bill 2000
Schedule 20 Amendments relating to specialised insurers and self-insurers
[3] Section 175A
Insert after section 175:
175A Special provisions for specialised insurers
(1) An application for a licence under this Division may be made
conditional on the licence being endorsed with a specialised
insurer endorsement.
(2) The Authority may endorse the licence with a specialised
insurer endorsement but only if the Authority is satisfied that
the insurance business to be carried on pursuant to the licence
will be limited to a particular industry or class of business or
employer, and that:
(a) the applicant is eligible for such an endorsement (as
provided by this section), or
(b) the applicant will issue policies only in respect of
domestic or similar workers.
(3) An applicant for a licence under this Division is eligible for a
specialised insurer endorsement if the Authority is satisfied:
(a) that the insurance business to be carried on pursuant to
the licence will not have an adverse effect on the
efficiency of the workers compensation scheme under
this Act generally, and
(b) that the application is supported by relevant
professional, business and other industry bodies
involved in the particular industry or class of business
or employer concerned, and
(c) that an authority has been granted to the applicant under
section 23 (Authority to commence carrying on
insurance business) of the Insurance Act 1973 of the
Commonwealth and is in force, and
(d) as to such other matters as the Authority considers
relevant.
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Amendments relating to specialised insurers and self-insurers Schedule 20
(4) The Authority may by notice in writing to a licensed insurer
withdraw a specialised insurer endorsement that the licence is
endorsed with if the Authority is of the opinion that the
Authority would not be authorised (on an application for a
licence by the insurer) to endorse the licence with a specialised
insurer endorsement.
(5) The withdrawal of a specialised insurer endorsement is grounds
for the suspension or cancellation of the relevant licence under
this Division.
Explanatory note
Item [3] provides for the requirements to be satisfied before a specialised insurer
endorsement can be granted and provides for the cancellation of the endorsement if
those requirements do not continue to be met.
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Workers Compensation Legislation Amendment Bill 2000
Schedule 21 Amendments relating to insurance premiums appeals
Schedule 21 Amendments relating to insurance
premiums appeals
(Section 3)
21.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 165 Action by employer where premium not in accordance with
approved methodology
Omit section 165 (1) and (2). Insert instead:
(1) An employer from whom an insurer has demanded a premium
for the issue or renewal of a policy of insurance may dispute an
aspect of the insurer's determination of that premium on the
basis that it is not in accordance with the insurer's approved
total premium methodology. The employer may apply to the
Authority for a review by the Authority of that aspect (the
disputed aspect) of the insurer's determination.
(2) Any such application must be made within 1 month after the
date of the demand for the premium concerned, or within such
further period as the Authority may, in special circumstances,
approve in relation to the application.
[2] Section 165 (3) (c)
Omit the paragraph. Insert instead:
(c) must dismiss the application if the Authority decides
that:
(i) the policy is not a policy to which the insurer's
approved total premium methodology applies, or
(ii) the disputed aspect was determined by the
insurer in accordance with the insurer's
approved total premium methodology,
or must in any other case determine the disputed aspect
in accordance with the insurer's approved total
premium methodology, and
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Amendments relating to insurance premiums appeals Schedule 21
[3] Section 165 (3A) and (3B)
Insert after section 165 (3):
(3A) The Authority's determination of the disputed aspect is to be
made as a review of the insurer's determination and
accordingly is to be made as if it were the determination
required to be made by the insurer at the time of the
determination of the premium concerned.
(3B) When the Authority makes a determination on a review under
this section, the insurer must redetermine the relevant premium
in accordance with the Authority's determination.
[4] Section 165 (4) (a)
Omit the paragraph. Insert instead:
(a) the insurer redetermines a premium following the
Authority's determination, and
[5] Section 165 (4)
Omit "determined by the Authority". Insert instead "as redetermined,
together with interest on the amount of premium recoverable calculated at
the rate of 1.2% per month compounded monthly (or, where some other rate
of interest is prescribed by the regulations, that other rate)".
[6] Section 165 (5) (b)
Omit "decision". Insert instead "determination".
[7] Section 165 (5) (b)
Omit "at the premium determined by the Authority".
Insert instead "at such premium as would result from a redetermination by
the insurer of the premium in accordance with the Authority's
determination".
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Workers Compensation Legislation Amendment Bill 2000
Schedule 21 Amendments relating to insurance premiums appeals
[8] Section 165 (5)
Omit "at the premium so determined". Insert instead "at that premium".
Explanatory note
Section 165 of the Act currently provides for the determination by the Authority of an
employer's workers compensation insurance premium on the application of the employer
on the basis that the premium demanded by the insurer is in breach of the insurer's total
premium methodology.
Items [1][8] will enable an employer to apply for a determination by the Authority of a
particular aspect of the insurer's determination that the employer disputes. The Authority
will determine the issue in dispute without proceeding to determine the correct premium,
and the insurer will then be required to redetermine the premium in accordance with the
Authority's determination. The Authority's determination will be made as a review of the
insurer's determination and accordingly will be made on the same basis as that on which
the insurer's determination was required to be made at the time the premium was
originally determined.
The amendments also provide for interest to be payable by the insurer in respect of an
overpaid premium that is recoverable by the employer following a determination of the
dispute.
21.2 Workers Compensation Act 1987 No 70
[1] Section 170 Action by employer where premium not in accordance with
insurance premiums order
Omit section 170 (1) and (2). Insert instead:
(1) An employer from whom an insurer has demanded a premium
for the issue or renewal of a policy of insurance may dispute an
aspect of the insurer's determination of that premium on the
basis that it is not in accordance with the relevant insurance
premiums order. The employer may apply to the Authority for
a review by the Authority of that aspect (the disputed aspect)
of the insurer's determination.
(2) Any such application must be made within 1 month after the
date of the demand for the premium concerned, or within such
further period as the Authority may, in special circumstances,
approve in relation to the application.
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Amendments relating to insurance premiums appeals Schedule 21
[2] Section 170 (3) (c)
Omit the paragraph. Insert instead:
(c) must dismiss the application if the Authority decides
that:
(i) the policy is not a policy to which a relevant
insurance premiums order applies, or
(ii) the disputed aspect was determined by the
insurer in accordance with the relevant insurance
premiums order,
or must in any other case determine the disputed aspect
in accordance with the relevant insurance premiums
order, and
[3] Section 170 (3A) and (3B)
Insert after section 170 (3):
(3A) The Authority's determination of the disputed aspect is to be
made as a review of the insurer's determination and
accordingly is to be made as if it were the determination
required to be made by the insurer at the time of the
determination of the premium concerned.
(3B) When the Authority makes a determination on a review under
this section, the insurer must redetermine the relevant premium
in accordance with the Authority's determination.
[4] Section 170 (4) (a)
Omit the paragraph. Insert instead:
(a) the insurer redetermines a premium following the
Authority's determination, and
[5] Section 170 (4)
Omit "determined by the Authority". Insert instead "as redetermined,
together with interest on the amount of premium recoverable calculated at
the rate of 1.2% per month compounded monthly (or, where some other rate
of interest is prescribed by the regulations, that other rate)".
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Workers Compensation Legislation Amendment Bill 2000
Schedule 21 Amendments relating to insurance premiums appeals
[6] Section 170 (5) (b)
Omit "decision". Insert instead "determination".
[7] Section 170 (5) (b)
Omit "at the premium determined by the Authority".
Insert instead "at such premium as would result from a redetermination by
the insurer of the premium in accordance with the Authority's
determination".
[8] Section 170 (5)
Omit "at the premium so determined". Insert instead "at that premium".
Explanatory note
Section 170 of the Act currently provides for the determination by the Authority of an
employer's workers compensation insurance premium on the application of the employer
on the basis that the premium demanded by the insurer is in breach of an insurance
premiums order.
Items [1][8] will enable an employer to apply for a determination by the Authority of a
particular aspect of the insurer's determination that the employer disputes. The Authority
will determine the issue in dispute without proceeding to determine the correct premium,
and the insurer will then be required to redetermine the premium in accordance with the
Authority's determination. The Authority's determination will be made as a review of the
insurer's determination and accordingly will be made on the same basis as that on which
the determination by the insurer was required to be made at the time the premium was
originally determined.
The amendments also provide for interest to be payable by the insurer in respect of an
overpaid premium that is recoverable by the employer following a determination of the
dispute.
[9] Schedule 6, Part 15 Provisions relating to insurance
Insert as clause 6B of Part 15 of Schedule 6:
6B Premium calculation disputes
(1) In this clause:
premium dispute application means an application under an
insurance premiums order, the Workers Compensation
(Insurance Premiums) Regulation 1987 or the Workers
Compensation (Insurance Premiums) Regulation 1995 for the
calculation or variation by the Authority of any matter (the
disputed matter) relevant to the determination by an insurer of
the premium payable for the issue or renewal of a policy of
insurance.
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Amendments relating to insurance premiums appeals Schedule 21
(2) After the commencement of this clause:
(a) no further premium dispute applications can be made,
and
(b) any matter that could before the commencement of this
clause have been the subject of a premium dispute
application can instead be the subject of an application
for determination by the Authority under section 170 (as
amended by the Workers Compensation Legislation
Amendment Act 2000), and
(c) any premium dispute application made but not
determined before the commencement of this clause is
to be dealt with as an application under section 170 (as
amended by the Workers Compensation Legislation
Amendment Act 2000) for determination by the
Authority of the relevant aspect of the insurer's
determination.
(3) Any premium dispute application dealt with before the
commencement of this clause as an application under
section170 for a determination as to the premium to be charged
for the issue or renewal of the policy concerned is taken to have
been validly dealt with, and any determination of the premium
payable is taken to have been validly made, as if the premium
dispute application had been a valid application under that
section.
(4) Subclause (3) does not affect any determination of a court
made before the commencement of this clause.
(5) The amendments made to section 170 by the Workers
Compensation Legislation Amendment Act 2000 apply to an
application made under that section, but not determined, before
the commencement of the amendments. The application is to
be dealt with as an application under section 170 (as so
amended) for determination by the Authority of the relevant
aspect of the insurer's determination.
(6) The amendment made to section 170 (4) of this Act by the
Workers Compensation Legislation Amendment Act 2000
relating to the payment of interest extends to premiums paid
before the commencement of the amendment, but so that
interest is payable only in respect of periods after that
commencement.
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Schedule 21 Amendments relating to insurance premiums appeals
Explanatory note
Item [10] provides that various applications under a current and former regulation, or an
insurance premiums order, for the calculation or determination by the Authority of
disputed amounts that are relevant to the determination of an insurance premium under
the 1987 Act are instead to be made and dealt with as applications under section 170 of
the 1987 Act. This will result in such an application being dealt with as a dispute about
the relevant aspect of the insurer's determination of premium. The Authority will
determine the dispute and, rather than actually calculating the amount in dispute, remit
the matter for redetermination by the insurer. The amendment also:
(a) validates the determination of applications made before the commencement of the
amendments, and
(b) provides that the amendments made to section 170 of the 1987 Act also apply to
applications made under that section, but not determined, before the amendments
commence, and
(c) provides that the amendment made to section 170 (4) of the 1987 Act relating to the
payment of interest to employers on overpaid premiums extends to premiums paid
before the commencement of the amendments.
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Amendments relating to the transfer of provisions from the regulations Schedule 22
Schedule 22 Amendments relating to the transfer of
provisions from the regulations
(Section 3)
22.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 23 Specific functions
Omit "workplace rehabilitation programs" from section 23 (1) (i).
Insert instead "return-to-work programs".
[2] Section 86 Agreements arising from conciliation
Omit "workplace rehabilitation program" from section 86 (4) (b).
Insert instead "return-to-work program".
Explanatory note
Items [1] and [2] update the terminology used in provisions that presently refer to
"workplace rehabilitation programs" or a "workplace rehabilitation program". Such
programs are now referred to as "return-to-work programs" (see section 52 of the Act).
The amendments are transferred from the regulations.
[3] Section 101 Restrictions on commencing court proceedings about
weekly payments
Omit "commencement of this Act" from section 101 (5) (c).
Insert instead "commencement of the 1987 Act".
Explanatory note
Item [3] changes a reference to the commencement of the 1998 Act to a reference to the
commencement of the 1987 Act, so that restrictions on the commencement of court
proceedings about weekly payments of compensation will not apply if the injury was
received before the commencement of the 1987 Act, to reflect the intended operation of
the provision. The amendment is transferred from the regulations.
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Schedule 22 Amendments relating to the transfer of provisions from the regulations
22.2 Workers Compensation Act 1987 No 70
[1] Section 38A Determination of whether worker seeking suitable
employment
Omit "workplace rehabilitation program" from section 38A (5) (b).
Insert instead "return-to-work program".
Explanatory note
Item [1] updates the terminology used in a provision that presently refers to a "workplace
rehabilitation program". Such programs are now referred to as "return-to-work programs"
(see section 52 of the 1998 Act). The amendment is transferred from the regulations.
[2] Schedule 6, Part 4 Provisions relating to weekly payments of
compensation
Omit clause 5D (2) of Part 4 of Schedule 6. Insert instead:
(2) The amendments made to section 38 of this Act by the Workers
Compensation Legislation Amendment Act 1998 do not apply
to a worker in respect of any period of incapacity after the
commencement of those amendments that results from an
injury before that commencement if the worker was in receipt
of compensation in accordance with that section before that
commencement for any period of incapacity resulting from that
injury.
Explanatory note
Item [2] transfers to the 1987 Act a provision of the regulations under that Act (clause
73N of the Workers Compensation (General) Regulation 1995) that makes it clear that
the reduction in the maximum period from 104 weeks to 52 weeks of the section 38
benefit (that is the payment for a partially incapacitated worker of total incapacity
payments while the worker seeks but is not provided with suitable employment) does not
apply to a worker who was in receipt of compensation before the reduction in that period.
[3] Schedule 6, Part 4
Insert as clause 6B of Part 4 of Schedule 6:
6B Amendment to section 51 by 1998 amending Act--savings
(1) In this clause, the section 51 amendment means the
amendment made to section 51 (9) of this Act by the Workers
Compensation Legislation Amendment Act 1998.
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Amendments relating to the transfer of provisions from the regulations Schedule 22
(2) The section 51 amendment does not affect established
procedure (in accordance with relevant decisions of courts of
competent jurisdiction) with respect to the operation of section
51 of this Act, namely, that the commutation of a liability to
pay weekly compensation by the payment of a lump sum
determined by the Compensation Court is not a payment of
compensation to which a worker is entitled but a payment that
the employer may make with the consent of the worker in order
to commute that liability.
(3) This clause applies whether the liability that is to be commuted
arose before or after the commencement of this clause.
(4) Section 51 is taken to be amended to the extent (if any) as is
necessary for the purposes of giving effect to this clause.
Explanatory note
Item [3] transfers to the 1987 Act a provision of the regulations under that Act that makes
it clear that an amendment to the provision of the Act that provides for the commutation
to a lump sum of an employer's liability to pay weekly compensation is not to be
construed as altering a long-established procedure with respect to the operation of the
provision. Under that procedure, an employer may pay an amount determined by the
Compensation Court to commute or redeem the liability if the worker consents, but the
worker is not entitled to payment of such a lump sum.
[4] Schedule 6, Part 9 Provisions relating to notice of injury and claims for
compensation
Insert as clause 11 of Part 9 of Schedule 6:
11 Time within claim may be made--application of 3-year limit in
section 65 (13) of 1998 Act (Clause 73K of Regs)
(1) A reference in section 65 (13) or (14) of the 1998 Act to the
period of 3 years after the injury or accident happened is to be
construed, in the case of a claim for compensation made in
respect of an injury or accident that happened more than 2
years before the commencement of this clause, as a reference
to the period ending 1 year after that commencement.
(2) The provisions of section 92 of this Act relating to the time
within which a claim for compensation may be made continue
to apply to a claim:
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(a) that is made before the commencement of this clause or
within the period of 1 year after that commencement,
and
(b) that relates to an injury or accident that happened before
the commencement of the 1998 Act.
Explanatory note
Item [4] transfers to the 1987 Act a provision of the regulations under that Act that deals
with transitional arrangements consequent on the enactment of the new provisions in the
1998 Act relating to the making of claims for compensation. The transitional regulation
provided that the 3-year limit on making a claim (except in the case of death and serious
and permanent disablement) was increased to 1 year after the enactment of the 1998 Act
if the injury or accident happened more than 2 years before that enactment. The principal
change effected in this area by the 1998 Act was that, under the 1987 Act, the 3 year
limit did not apply in the case of death or if it was in the interests of justice. The above
clause provides claimants with a further year from the commencement of the clause
within which to make their claim without compliance with the stricter limits on bringing late
claims introduced by the 1998 Act.
[5] Schedule 6, Part 11 Provisions relating to proceedings before
commissioners and the Compensation Court
Insert as clause 4 of Part 11 of Schedule 6:
4 Restrictions on commencement of proceedings--1998 Act
The amendment made to section 101 (5) (c) of the 1998 Act by
the Workers Compensation Legislation Amendment Act 2000
is taken to have had effect on and from 1 August 1998 but not
so as to affect any decision of a court made before the
commencement of this clause.
Explanatory note
Item [5] inserts a transitional provision consequent on the amendment to section 101 (5)
(c) of the 1998 Act made in this Schedule. The transitional provision gives the
amendment effect on and from 1 August 1998, being the date of commencement of the
section being amended, without affecting any decision of a court already made.
[6] Schedule 6, Part 14 Provisions relating to common law remedies,
clause 11 Amendment of section 151A--1998 amending Act
Insert "of compensation" after "awards" wherever occurring.
Explanatory note
Item [6] transfers to the 1987 Act a provision of the regulations under that Act that makes
it clear that an amendment to the provision of the Act that deals with elections for
damages or compensation applies to awards of compensation by the Compensation
Court whether the awards are by award, interim award or order.
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[7] Schedule 6, Part 18A Additional provisions consequent on 1998 Act
and 1998 amending Act
Insert as clause 2A of Part 18A of Schedule 6:
2A Application of 1998 Act provisions corresponding to repealed
provisions of Part 4 of this Act (making of claims etc)
(1) The provisions of the 1998 Act that correspond to the repealed
provisions of Part 4 of this Act apply to a thing referred to in
clause 2 (1) given, made or done after the repeal of Part 4 even
if the thing relates to an injury or other relevant matter received
or occurring before that repeal.
(2) The clause does not affect the operation of clause 11 of Part 9
or any decision made by a court before the commencement of
the clause.
Explanatory note
Item [7] makes it abundantly clear that the provisions of the 1998 Act relating to the
making of claims and related matters apply to the making of claims and other matters
after the enactment of the 1998 Act even if they relate to injuries received or other
matters occurring before the enactment of that Act. Clause 2 of Part 18A already makes
it clear that pending claims and other matters under Part 4 of the 1987 Act on the
enactment of the 1998 Act became claims and other matters pending under the
provisions of the 1998 Act. This amendment is made in connection with the transfer of
a related provision of the regulations to the Act effected by item [4].
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Schedule 23 Miscellaneous amendments
(Section 3)
23.1 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 41A
Insert after section 41:
41A Chapter applies even when liability disputed
The requirements of this Chapter apply even when there is a
dispute as to liability.
Explanatory note
Item [1] makes it clear that the provisions of Chapter 3 (Workplace injury management)
apply even when the insurer disputes liability.
[2] Section 45 Injury management plan for worker with significant injury
Insert ", the treating doctor" after "self-insurer)" in section 45 (2).
Explanatory note
Section 45 (2) provides that an injury management plan for an injured worker with a
significant injury is to be established by the insurer in consultation with the employer and
the worker. Item [2] provides that the treating doctor is also to be consulted.
[3] Section 77 Principal Conciliator and other conciliators
Omit "May" from section 77 (5).
Insert instead "March (or such other month as the Minister may
determine)".
Explanatory note
Section 77 (5) requires an estimate of expenditure to be incurred in connection with the
Workers Compensation Resolution Service to be forwarded to the Authority in May of
each year. Item [3] changes this to March, in line with Government budgetary practices,
or such other month as the Minister may determine.
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[4] Section 84 Certificates as to conciliation of disputes
Insert after section 84 (5) (f):
(g) if the worker has unreasonably failed to participate in
conciliation, whether the amount of the conciliation
costs payable by the employer should be reduced and,
if so, by what amount.
Explanatory note
Item [4] enables a conciliation certificate to include a recommendation that the amount
that the employer would otherwise be required to pay as conciliation costs should be
reduced if the worker has unreasonably failed to participate in conciliation.
[5] Section 88 Conciliation costs
Insert at the end of section 88 (1):
conciliation disbursements means disbursements in relation to
the services referred to in the definition of conciliation costs in
this subsection.
[6] Section 88 (2)(5)
Omit section 88 (2). Insert instead:
(2) The conciliation costs in a dispute are payable by the employer
unless the Principal Conciliator reduces the amount payable by
the employer on the basis of a recommendation in a
conciliation certificate. The regulations may fix the maximum
amount of conciliation costs in a dispute that are payable by the
employer.
(3) Conciliation costs are payable at the end of the conciliation
proceedings concerned, regardless of outcome.
(4) The regulations may make provision for or with respect to the
following:
(a) requiring all or any conciliation disbursements to be
paid by the employer,
(b) fixing the maximum amount of conciliation
disbursements that are payable by the employer,
(c) requiring the payment of conciliation disbursements at
the end of the conciliation proceedings concerned,
regardless of outcome.
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(5) A requirement imposed by or under this section may be
enforced as if it were a requirement of an order for the
payment of costs made by the Compensation Court under
section 112.
Explanatory note
Items [5] and [6] require the employer to pay the workers conciliation costs unless the
Principal Conciliator otherwise orders on the basis of a recommendation in a conciliation
certificate. The amendments replace an existing provision that allows regulations to be
made requiring conciliation costs to be paid by the employer. The amendments provide
that conciliation costs are payable at the end of conciliation, regardless of outcome. The
amendments also allow similar provision to be made by regulations in respect of
conciliation disbursements.
[7] Section 176 Determination of application for licence
Omit section 176 (2) (e).
Explanatory note
Section 176 of the Act deals with applications by insurers to be licensed to provide
workers compensation insurance. Section 176 (2) lists the matters that the Authority may
take into consideration for the purposes of determining an application for a licence,
including the appropriate maximum number of licensed insurers (subsection (2) (e)).
Consistently with national competition policy, item [7] omits specific mention of
consideration of that matter.
[8] Section 231 Posting summary of Act
Omit "in or to the effect of the prescribed form" from section 231 (1) (a).
Insert instead "in the form prescribed by the regulations or approved by the
Authority from time to time".
Explanatory note
Section 231 of the Act currently requires a summary of the Act in the form prescribed by
the regulations to be posted up at every place of work. Item [8] allows the Authority to
approve an alternative form of summary to be posted up instead of the summary
prescribed by the regulations.
[9] Section 247 Time for instituting proceedings
Insert " or Part 9 of Chapter 5 of this Act" after "1987 Act" in section 247
(3) (b).
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[10] Section 247 (3) (b)
Insert "of the 1987 Act or that Part of this Act" after "that Division".
Explanatory note
Section 247 (3) of the Act deals with the time within which proceedings must be instituted
for offences by employers of failing to obtain and maintain insurance policies as required
under section 144 of the 1998 Act or section 155 of the 1987 Act. Items [9] and [10]
make the time within which the WorkCover Authority can institute proceedings for such
an offence under section 144 of the 1998 Act the same as for the corresponding offence
under the 1987 Act.
23.2 Workers Compensation Act 1987 No 70
[1] Section 68B Deductions under section 68A--operation of sections 15,
16, 17 and 22
Omit section 68B (2)(4). Insert instead:
(2) When determining the compensation payable by an employer
in a case in which section 15 applies (disease of such a nature
as to be contracted by a gradual process), section 68A applies
to that compensation subject to the following:
(a) there is to be no deduction under section 68A for any
proportion of the loss that is due to the worker's
employment in previous relevant employment (as
defined in paragraph (b)) except any such proportion for
which compensation under this Division or section 16
of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a), previous relevant
employment is employment to the nature of which the
disease was due by a previous employer who is liable
under section 15 to contribute in respect of the
compensation being determined (or who would be so
liable if the requirement to contribute were not limited
to employers who employed the worker during a
particular period),
(c) in the case of permanent impairment of the back, neck
or pelvis, a reference in this subsection to previous
relevant employment is limited to employment after the
commencement of this Act.
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(3) When determining the compensation payable by an employer
in a case in which section 16 applies (an injury that consists in
the aggravation, acceleration, exacerbation or deterioration of
a disease), section 68A applies to that compensation subject to
the following:
(a) there is to be no deduction under section 68A for any
proportion of the loss that is due to the worker's
employment in previous relevant employment (as
defined in paragraph (b)) except any such proportion for
which compensation under this Division or section 16
of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a), previous relevant
employment is employment that was a substantial
contributing factor to the aggravation, acceleration,
exacerbation or deterioration by a previous employer
who is liable under section 16 to contribute in respect of
the compensation being determined (or who would be
so liable if the requirement to contribute were not
limited to employers who employed the worker during
a particular period),
(c) in the case of permanent impairment of the back, neck
or pelvis, a reference in this subsection to previous
relevant employment is limited to employment after the
commencement of this Act.
(4) When determining the compensation payable by an employer
in a case in which section 17 applies (loss or further loss of
hearing), section 68A applies to that compensation subject to
the following:
(a) there is to be no deduction under section 68A for any
proportion of the loss that is due to the worker's
employment in previous relevant employment (as
defined in paragraph (b)) except any such proportion for
which compensation under this Division or section 16
of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a), previous relevant
employment is employment to the nature of which the
disease was due by a previous employer who is liable
under section 17 to contribute in respect of the
compensation being determined (or who would be so
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liable if the requirement to contribute were not limited
to employers who employed the worker during a
particular period).
Explanatory note
Section 68B makes special provision for deductions from lump sum compensation
entitlements in the case of gradual diseases and hearing loss. The section operates as
an exception to section 68A which requires a deduction from those entitlements. Section
68A aims to ensure that the employer will only be liable for the part of a worker's
permanent loss that is actually caused by work with that employer, and thereby to
minimise reluctance of employers to employ workers with existing losses. The exception
in section 68B currently provides that there is to be no deduction for loss due to
employment by a previous employer in relevant injury causing employment ("noisy"
employment in the case of hearing loss, for example). There should be no deduction in
such a case because the most recent "noisy" employer is liable to pay compensation for
the full extent of the loss suffered (including loss suffered in previous employment) with
a right of contribution against previous "noisy" employers. The effect of recovering such
contributions is similar to deducting the relevant amount from the most recent employer's
liability, so that it is not necessary to apply the general deduction requirement in section
68A. The amendment provides by way of clarification that this exception is not to apply
to any proportion of the loss for which compensation has already been paid by a previous
employer (or is payable by a previous employer, such as where the worker has given
notice of injury with the previous employer before starting with the most recent employer)
and is not to apply to employment by previous employers who would not be liable to
contribute (such as employers in other jurisdictions).
In addition, the amendments prevent unintended reductions in benefits by clarifying that
the requirement under present section 68B for the part of a loss due to employment
before the commencement of the Workers Compensation Act 1987 to be deducted from
lump sum entitlements in gradual disease cases (that is, for the exception provided by
section 68B not to apply to that employment) only applies in cases of impairment of the
back, neck or pelvis, because lump sum benefits for those kinds of impairment were only
introduced as from the commencement of that Act.
The amendments provide that the general provisions of section 68A will apply subject to
the above special exceptions contained in the amendments to section 68B, so that both
sections may still have to be used for a particular claim. For example, in a case of loss
of hearing, a deduction as referred to in section 68B would be made from the worker's
lump sum entitlement for any part of the current loss for which lump sum compensation
has already been paid (or is payable) by a previous employer who employed the worker
in employment of a nature likely to cause loss of hearing. However, existing section 68A
would also operate directly to require a deduction for any part of the loss for which
compensation has already been paid (or is payable) on any basis by the most recent
employer (against whom the current loss is claimed) or for any part of the loss that is due
to previous work outside the compensation contribution arrangements mentioned above
or other pre-existing condition or abnormality.
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[2] Section 69A No compensation for less than 6% hearing loss
Omit section 69A (9). Insert instead:
(9) For the purposes of the operation of section 68B in relation to
compensation for loss of hearing, a reference in that section to
compensation that is payable under this Division includes a
reference to compensation that would be payable were it not for
the operation of this section.
Explanatory note
Item [2] updates a cross-reference.
[3] Schedule 6 Savings, transitional and other provisions, Part 6 Provisions
relating to compensation for non-economic loss (Table of Disabilities)
Insert as clause 20 of Part 6 of Schedule 6:
20 Section 68B--2000 amending Act
(1) In a case where section 16 deems an injury to have happened
within 12 months after the commencement of section 9A,
section 68B (3) is, in its application in respect of any period of
employment before the commencement of section 9A, to be
read as if a reference in it to employment that was a substantial
contributing factor were a reference to employment that was a
contributing factor (whether or not a substantial contributing
factor).
(2) If compensation has been paid or has become payable under
section 16 of the former Act for a loss of a thing, section 68B
applies in respect of the determination of compensation under
Division 4 of Part 3 of this Act for a further loss of that thing
regardless of whether the description of the loss in section 16
of the former Act differs from the corresponding description of
the loss in the Table to Division 4 of Part 3.
(3) This clause and the amendments made by the Workers
Compensation Legislation Amendment Act 2000 to substitute
section 68B (2)(4) are for the avoidance of doubt and
accordingly are taken to have had effect from the
commencement of section 68B, but not so as to affect:
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(a) any award of compensation made before the
commencement of this clause, or
(b) any compensation that a worker has received or agreed
to receive before the commencement of this clause, or
(c) any award of, or compromise or settlement of a claim
for, damages made before the commencement of this
clause, or
(d) any court proceedings commenced by a worker for
damages from the worker's employer (or other person
referred to in section 150) before the commencement of
this clause.
Explanatory note
Item [3] inserts a transitional provision that provides that the clarifying changes made to
section 68B by item [1] apply as from the commencement of that section.
[4] Schedule 6, Part 20 Savings and transitional regulations
Insert at the end of clause 1 (1) of Part 20 of Schedule 6:
Workers Compensation Legislation Amendment Act 2000
Explanatory note
Item [4] extends the operation of an existing savings and transitional regulation making
power to the amendments made by this Bill.
23.3 Workers' Compensation (Dust Diseases) Act 1942 No 14
[1] Section 6 Constitution of Fund
Omit section 6 (1) (b). Insert instead:
(b) all money paid to the board as contributions by insurers
under and in accordance with this section, and
[2] Section 6 (6)
Omit "WorkCover Authority" where firstly occurring.
Insert instead "board".
[3] Section 6 (7C)
Omit the subsection.
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[4] Section 6 (7D)
Omit "Fund" where firstly occurring. Insert instead "board".
[5] Section 6 (7E)
Omit "WorkCover Authority" where secondly and thirdly occurring.
Insert instead "board".
Explanatory note
The Act currently requires contributions by workers compensation insurers for payment
into the Workers' Compensation (Dust Diseases) Fund (the Fund) to be paid to the
WorkCover Authority. The Authority is then required to pay the contributions to the
Workers' Compensation (Dust Diseases) Board for payment into the Fund. Items [1][5]
will provide for the contributions paid by insurers to be paid directly to the Board for
payment into the Fund.
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