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New South Wales
Workers Compensation Legislation
Amendment Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Workers Compensation Act 1987 No 70 2
4 Amendment of Workplace Injury Management and Workers
Compensation Act 1998 No 86 2
5 Repeal of Workers Compensation Legislation Amendment
Act 2002 No 124 2
6 Repeal of Act 2
Schedule 1 Amendment of Workers Compensation Act 1987 No 70 3
Schedule 2 Amendment of Workplace Injury Management and Workers
Compensation Act 1998 No 86 10
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Workers Compensation Legislation
Amendment Bill 2006
Act No , 2006
An Act to amend the Workers Compensation Act 1987 and the Workplace Injury
Management and Workers Compensation Act 1998 to make further provision with
respect to the grouping of employers for workers compensation insurance purposes;
to provide for contributions to the WorkCover Authority Fund by certain employers
licensed under Commonwealth workers compensation legislation; and for other
purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Workers Compensation Legislation Amendment Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Workers Compensation Legislation Amendment
Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Workers Compensation Act 1987 No 70
The Workers Compensation Act 1987 is amended as set out in
Schedule 1.
4 Amendment of Workplace Injury Management and Workers
Compensation Act 1998 No 86
The Workplace Injury Management and Workers Compensation
Act 1998 is amended as set out in Schedule 2.
5 Repeal of Workers Compensation Legislation Amendment Act 2002
No 124
The Workers Compensation Legislation Amendment Act 2002 is
repealed.
6 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Workers Compensation Legislation Amendment Bill 2006
Amendment of Workers Compensation Act 1987 No 70 Schedule 1
Schedule 1 Amendment of Workers Compensation
Act 1987 No 70
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
group means the employers who constitute a group under
Division 2A of Part 7.
[2] Section 160 Recovery of excess from employer
Omit the definition of prescribed excess amount from section 160 (1).
Insert instead:
prescribed excess amount, in respect of a weekly compensation
claim paid under a policy of insurance, means the prescribed
excess amount specified by the relevant insurance premiums
order that applies to that policy.
[3] Section 160 (9)
Omit the subsection. Insert instead:
(9) Without limiting the operation of that provision, an insurance
premiums order referred to in the definition of prescribed excess
amount in subsection (1) may specify different amounts (or no
amount) according to the period within which the employer gave
notice of the injury concerned.
[4] Section 175 Employers evading payment of correct premiums
Insert after section 175 (4):
(4AA) If the Authority finds that:
(a) an employer has contravened section 175G (Members of
group to have policies with same scheme agent and
common renewal date) as a result of the issue or renewal
of a policy of insurance, and
(b) the total premium payable for those policies is less by a
certain amount than the total premium that would have
been payable had that section been complied with,
the Authority may recover from the employer in a court of
competent jurisdiction as a debt due to the Authority a sum equal
to twice that amount plus the late payment fee provided for by
subsection (4A). Half of that sum is to be paid by the Authority
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Workers Compensation Legislation Amendment Bill 2006
Schedule 1 Amendment of Workers Compensation Act 1987 No 70
to the insurer and the other half into the WorkCover Authority
Fund.
(4AB) For the purposes of the application of the Limitation Act 1969 to
an action on a cause of action to recover an amount under
subsection (4) or (4AA), the cause of action first accrues to the
Authority when the Authority makes the finding referred to in
those subsections.
[5] Section 175 (4A) (b)
Omit the paragraph. Insert instead:
(b) under subsection (4AA) as from the date the premium for
the issue or renewal of the policy referred to in subsection
(4AA) (a) first became due and payable to the insurer.
[6] Section 175A Recovery from directors of corporation evading payment
of correct premium
Insert "or (4AA)" after "section 175 (4)" in section 175A (1).
[7] Part 7, Division 2A
Insert after Division 2:
Division 2A Grouping of employers for insurance
purposes
175D Grouping of employers
(1) In this Division:
group means a group constituted under Part 10A of the Taxation
Administration Act 1996, but does not include any member of the
group in respect of whom a determination under section 175E of
this Act is in force.
(2) This Division does not apply to the following:
(a) an employer who is a self-insurer,
(b) the persons, groups of persons and bodies constituted as a
primary group by virtue of section 106J of the Taxation
Administration Act 1996 (being government departments),
(c) the members of a group where the total wages payable to
workers employed by the members of the group do not
exceed:
(i) $600,000 per year, or
(ii) if some other amount is prescribed by the
regulations--that other amount.
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Workers Compensation Legislation Amendment Bill 2006
Amendment of Workers Compensation Act 1987 No 70 Schedule 1
(3) The regulations may make provision for or with respect to
excluding, or authorising the Authority to exclude, any class or
classes of employers from the operation of this Division or
specified provisions of this Division.
175E Exclusion of employers from groups
(1) The Authority may, by order in writing, determine that an
employer who would, but for the determination, be a member of
a group is not a member of the group.
Note. Section 175F sets out the circumstances in which a determination
may be made under this section.
(2) The Authority must give notice in writing of a determination to
the employer in respect of whom the determination is made and
to each member of the group.
(3) A determination takes effect:
(a) on the date on which notice under subsection (2) is given
to the employer excluded from the group, or
(b) if another date of effect (including an earlier date) is
specified in the notice--on that other date.
(4) A determination continues in force until it is revoked.
(5) The Authority may revoke a determination only if satisfied that
the employer to which it relates no longer is an employer to
which section 175F applies.
(6) Notice of the revocation of a determination must be given by the
Authority:
(a) to the employer in respect of whom the determination was
made, and
(b) to each other member of the group of which the employer
is a member as a result of the revocation.
(7) A revocation of a determination takes effect on the date on which
notice under subsection (6) (a) is given to the employer in respect
of whom the determination was made.
(8) If an employer in respect of whom a determination under this
section was made becomes aware that the employer no longer is
one to which section 175F applies, the employer must, within 14
days, notify the Authority of that fact.
Maximum penalty (subsection (8)): 500 penalty units.
Page 5
Workers Compensation Legislation Amendment Bill 2006
Schedule 1 Amendment of Workers Compensation Act 1987 No 70
175F Grounds for excluding employers from group
(1) A determination may be made by the Authority under
section 175E in respect of the following employers only:
(a) an employer who would, but for the determination, be a
member of a group arising under section 106H of the
Taxation Administration Act 1996 (Primary groups arising
from the use of common employees),
(b) an employer that carries on a business as trustee of a trust
and would, but for the determination, be a member of a
group arising under section 106I of the Taxation
Administration Act 1996 (Primary groups of commonly
controlled businesses),
(c) an employer that is a non-profit organisation having as one
of its objects a charitable, benevolent, philanthropic or
patriotic purpose, but only if the employer's business is not
in direct competition with any for-profit organisation.
(2) In the case of an employer referred to in subsection (1) (b), the
determination may be made only if the Authority is satisfied that
the employer would, but for the determination, be a member of a
group with a person who carries on another business because of
the application of one (but not more than one) of the following
grouping principles:
(a) the exclusive ownership grouping principle (section 106I
(2) (a) and (b) of the Taxation Administration Act 1996),
(b) the corporate grouping principle (section 106I (2) (c)
and (d) and (3) of the Taxation Administration Act 1996),
(c) the common beneficiary grouping principle (section 106I
(2) (e) and (f) and (5)(8) of the Taxation Administration
Act 1996).
(3) The Authority must not make a determination under section 175E
in respect of an employer referred to in subsection (1) (a) or (b)
unless satisfied that the employer that is the subject of the
determination has continuously carried on the business
concerned, and will continue to carry on that business,
substantially independently of the other member or members of
the group.
(4) In determining whether an employer carries on business
substantially independently of the other member or members of a
group, the Authority is to have regard to the nature and degree of
ownership or control of the business of each member of the
group, the nature of each of those businesses and any other matter
that the Authority considers relevant.
Page 6
Workers Compensation Legislation Amendment Bill 2006
Amendment of Workers Compensation Act 1987 No 70 Schedule 1
175G Members of group to have policies with same scheme agent and
common renewal date
(1) The policy of insurance that an employer who is a member of a
group obtains and maintains in force for the purposes of
compliance with section 155 (a workers compensation
insurance policy) must:
(a) be obtained from or through the same scheme agent that
provides workers compensation insurance policies to the
other members of the group, and
(b) have the same renewal date as those other policies.
(2) An employer who contravenes subsection (1) is guilty of an
offence.
Maximum penalty: 500 penalty units.
(3) If an employer who is a member of a group does not obtain or
maintain in force a policy of insurance in compliance with this
section, the Authority may by notice in writing to a scheme agent:
(a) direct the transfer of any policy of insurance obtained or
maintained in contravention of this section to a specified
scheme agent (being the scheme agent from or through
whom workers compensation insurance is provided to
other members of the group concerned), and
(b) direct the alteration of the policy of insurance so that the
policy renews on the same date as the policies of other
members of the group.
(4) A scheme agent must give effect to a direction given to it under
this section.
175H Joint and several liability of group members
(1) If an employer who is a member of a group fails to pay an amount
that the employer is required to pay under this Part (including any
premium payable for a policy of insurance required under this
Part and any sum recoverable by the Authority under this Part
from the employer), every member of the group is liable jointly
and severally to pay the amount.
(2) If 2 or more persons are jointly or severally liable to pay an
amount as referred to in this section, the person entitled to
payment may recover the whole of the amount from them, or any
of them, or any one of them.
(3) A person who pays an amount in accordance with the liability
imposed by this section has such rights of contribution or
indemnity from the other person or persons as are just.
Page 7
Workers Compensation Legislation Amendment Bill 2006
Schedule 1 Amendment of Workers Compensation Act 1987 No 70
175I Registration
(1) The Authority is to keep a register of employers who are
members of a group.
(2) An employer must notify the Authority if the employer becomes
a member of a group to which this Division applies.
(3) The notification is to be made within 14 days of the employer
becoming aware, or of the date the employer ought reasonably to
have become aware through the exercise of due diligence, that the
employer is a member of a group to which this Division applies.
(4) The notification is to be made to the Authority in a form and
manner approved by the Authority.
(5) The Authority may remove an employer from the register if it is
satisfied that the employer has ceased to be an employer that is a
member of a group to which this Division applies.
(6) If a change occurs in the information provided to the Authority in
a notification, the employer must, within 14 days, notify the
Authority of that change.
Maximum penalty: 500 penalty units.
175J Inspection of records of employers
(1) The Authority may direct an employer in writing to make
available, at the time and place specified in the direction, for
inspection by a specified person authorised by the Authority,
records of a specified kind in the possession of the employer that
are relevant to any of the following:
(a) the determination of whether the employer is a member of
a group,
(b) the identity of other members of a group of which the
employer is a member.
(2) A person authorised under subsection (1) may inspect records in
accordance with the terms of the direction and make copies of, or
take extracts from, those records.
(3) An employer given a direction under this section:
(a) must comply with the direction, and
(b) must not wilfully obstruct or delay an authorised person
when exercising any power under subsection (2).
Maximum penalty: 100 penalty units.
(4) If an inspection under this section reveals that an employer has
contravened a provision of this Division, the Authority is entitled
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Workers Compensation Legislation Amendment Bill 2006
Amendment of Workers Compensation Act 1987 No 70 Schedule 1
to recover in a court of competent jurisdiction, as a debt due to
the Authority from the employer, the costs incurred by the
Authority in connection with that inspection.
(5) A certificate issued by the Authority certifying as to the costs
incurred by the Authority in connection with such an inspection
is evidence of the matters certified.
[8] Schedule 6 Savings, transitional and other provisions
Omit clause 3 of Part 18E of the Schedule.
[9] Schedule 6, Part 19B
Insert after Part 19A:
Part 19B Provisions consequent on enactment of
Workers Compensation Legislation
Amendment Act 2006
1 Bringing about common renewal date for group member's
policies: section 175G
(1) Section 175G of this Act (Members of group to have policies
with same scheme agent and common renewal date) does not
apply to an employer that is a member of a group existing at the
commencement of that section until one of the following events
occurs:
(a) one employer who is a member of the group obtains a
policy of insurance for the first time,
(b) one employer who is a member of the group renews a
policy of insurance.
(2) At the time that an employer who is a member of a group obtains
a policy of insurance for the first time, or renews a policy of
insurance, as referred to in subclause (1), all other members of the
group who have obtained and maintained policies of insurance
must arrange for those policies to be altered, or transferred to
another scheme agent, or both, so that all those members comply
with section 175G of this Act.
[10] Schedule 6, Part 20
Insert at the end of clause 1 (1):
Workers Compensation Legislation Amendment Act 2006
Page 9
Workers Compensation Legislation Amendment Bill 2006
Schedule 2 Amendment of Workplace Injury Management and Workers Compensation
Act 1998 No 86
Schedule 2 Amendment of Workplace Injury
Management and Workers
Compensation Act 1998 No 86
(Section 4)
[1] Section 37 Definitions
Insert in alphabetical order:
Comcare employer means an employer who:
(a) is licensed under Part VIII of the Safety, Rehabilitation and
Compensation Act 1988 of the Commonwealth after 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, and
(b) would otherwise be required:
(i) to obtain and maintain in force a policy of insurance
pursuant to section 155 of the 1987 Act, or
(ii) to be licensed as a self-insurer.
[2] Section 37, definition of "deemed premium income"
Insert "or Comcare employer" after "self-insurer" wherever occurring.
[3] Section 38 Assessment by Authority of amount to be contributed to
Fund
Omit "and self-insurers" wherever occurring from section 38 (c), (d) and (e).
Insert instead ", self-insurers and Comcare employers".
[4] Section 39A
Insert after section 39:
39A Contributions to Fund by Comcare employers
(1) Each Comcare employer must pay the contributions prescribed
by this section to the Authority for payment into the WorkCover
Authority Fund.
(2) The contribution to be paid by a Comcare employer, in respect of
each financial year (being a financial year during the whole or
part of which the person was a Comcare employer), is an amount
equal to the percentage (determined by the Authority in
accordance with this section) of the deemed premium income of
Page 10
Workers Compensation Legislation Amendment Bill 2006
Amendment of Workplace Injury Management and Workers Compensation Schedule 2
Act 1998 No 86
the Comcare employer during the relevant period when the
person was a Comcare employer.
(3) The percentage determined by the Authority pursuant to
subsection (2):
(a) subject to paragraph (b), is to be such as, in the opinion of
the Authority, will be sufficient to yield the total amount to
be contributed to the Fund by Comcare employers in
respect of the relevant financial year as determined
pursuant to section 38, and
(b) is to be 60%, or such other percentage (not exceeding
70%) as determined by the Authority by order, of the
percentage determined in accordance with section 39, and
(c) is to be rounded to 2 decimal places, and
(d) is to be the same percentage for all Comcare employers.
Example. If the percentage determined in accordance with section 39 is
4%, unless an order under subsection (3) (b) has been made, the
percentage under subsection (2) will be (60% x 4% =) 2.40%.
If the percentage determined in accordance with section 39 is still 4%,
but an order under subsection (3) (b) has been made increasing that
percentage to 62.1%, then the percentage under subsection (2) will be
(62.1% x 4% = 2.484%, then rounded to the nearest two decimal places)
2.48%.
(4) A contribution by a Comcare employer is payable in such
instalments and at such times as may be determined by the
Authority and notified to the Comcare employer.
(5) The Authority may, at any time during or after a financial year,
re-determine the percentage determined pursuant to subsection
(2) in respect of the financial year if the estimated total amount of
premium income and deemed premium income for the financial
year is less than the previously estimated amount on which the
original determination of the percentage was based.
(6) If a percentage is re-determined, the Authority is to make the
necessary adjustments to the contributions payable by Comcare
employers.
(7) If a contribution payable by a Comcare employer has not been
paid within the time prescribed by or under this section:
(a) the Comcare employer is guilty of an offence and liable to
a penalty not exceeding 100 penalty units, and
(b) the amount of that contribution together with a late
payment fee calculated at the rate of 15% of that amount
per annum compounded quarterly (or, where another rate
Page 11
Workers Compensation Legislation Amendment Bill 2006
Schedule 2 Amendment of Workplace Injury Management and Workers Compensation
Act 1998 No 86
is prescribed, that other rate) may be recovered by the
Authority as a debt in any court of competent jurisdiction.
(8) Subject to subsection (3), more than one percentage may be
determined by the Authority for different portions of a financial
year for the purposes of subsection (2).
(9) A certificate executed by the Authority as to the amount of a
contribution payable under this section by a Comcare employer
specified in the certificate and the due date for payment is
(without proof of its execution by the Authority) admissible in
proceedings under this section and is evidence of the matters
specified in the certificate.
(10) The obligation of a person (being a Comcare employer) to make
a contribution under this section in respect of any period during
which the person was a Comcare employer does not cease merely
because the person subsequently ceases to be a Comcare
employer.
(11) This section does not apply to a Comcare employer on and from
the date that the Comcare employer becomes subject to the
Occupational Health and Safety (Commonwealth Employment)
Act 1991 of the Commonwealth.
[5] Section 44 Early notification of workplace injury
Omit "The regulations under section 160 of the 1987 Act" from section 44 (5).
Insert instead "An insurance premiums order referred to in the definition of
prescribed excess amount in section 160 (1) of the 1987 Act".
[6] Section 243 Disclosure of information
Insert after section 243 (2) (a):
(b) the Chief Commissioner of State Revenue under the
Taxation Administration Act 1996, and
Page 12
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