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Bill 1995
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
Workers Compensation Act 1987
The following amendments are made:
(a) Existing provision for the automatic indexation of workers
compensation lump sum payments for permanent disabilities
(section 66) and pain and suffering (section 67) in line with
movements in average wages is suspended so as to freeze that
compensation at current levels.
Amended in committee-see table at end of volume.
It is made clear that lump sum workers compensation for pain and
suffering is limited to pain and suffering resulting from permanent
disability and does not extend to other pain and suffering resulting
from work injury.
A 5% eligibility threshold is imposed for industrial deafness claims so
that lump sum workers compensation is not payable unless hearing
loss reaches 6%.
No compensation will be payable for psychological injury (such as
stress) unless employment was a substantial cause and no
compensation will be payable where stress resulted from reasonable
action by the employer with respect to staffing matters (such as
promotion, demotion, transfer, discipline, dismissal and retrenchment).
The payment of interest on lump sum workers compensation for
non-economic loss (permanent disability and pain and suffering
compensation) will be abolished, except for late payment of a Court
award or agreed compensation.
The payment of interest on common law damages (for work injuries)
for non-economic loss is abolished, and the payment of interest on
common law damages for economic loss is restricted in line with
restrictions in the Motor Accidents Act 1988. Interest on late payment
of an award is not affected.
Additional provisions are inserted to make it clear that lump sum
workers compensation is not payable for pre-existing impairment of
the neck, back or pelvis by requiring the deduction of that pre-existing
impairment from the compensation payable. The amendment
overcomes the effect of a number of court decisions.
Lump sum compensation is introduced for workers who contract HIV/
AIDS in the course of their employment.
Lump sum compensation is introduced for workers who suffer severe
permanent bowel injury in the course of their employment.
Time limits for the lodgment of claims for workers are tightened to
require claims to be lodged within 3 years after injury unless there are
exceptional circumstances.
Penalties and other measures (such as preventing the recovery of
costs) are introduced for unscrupulous activities such as touting and
claims chasing, particularly in the area of hearing loss claims.
Cost penalties are introduced for unreasonable refusal of lump sum
compensation settlement offers.
Explanatory note page 2
Provisions are introduced requiring workers to lodge their claim with
the employer/insurer before litigation can be commenced. In the case
of lump sum disability claims, an initial 3 month period is provided to
allow an opportunity for proper claim assessment and possible
reference to a medical panel if disputed.
Existing provisions requiring insurers to refer to conciliation disputes
concerning liability to commence weekly compensation are extended
to also require conciliation referral by insurers of disputes concerning
liability to continue weekly compensation (but these provisions will
not prevent the bringing of proceedings in the Compensation Court).
Procedural improvements are also made to conciliation provisions
An expanded role is provided for medical panels, and (if the worker
and employer agree) an independent medical practitioner of their
choice, to assess disputed permanent disability compensation claims.
An expanded role is provided for commissioners of the Compensation
Court with power for the regulations to prescribe those matters that
are to be allocated to the commissioners, with appeals on questions of
law on those matters to go to a Judge of that Court.
A regulation making power is introduced to enable the fixing of
maximum legal costs in workers compensation matters and the
maximum costs for the provisions of medical evidence in those
matters, with no recovery of costs above any prescribed maximum.
Provision is introduced that will prevent recovery from injured
workers of medical, hospital and rehabilitation costs above the
maximums that are set or that can be set under existing provisions.
Provision is introduced to enable the regulations to require employers
to prepare return-to-work plans for injured workers.
Penalties for failure to take out workers compensation insurance are
increased, including by the introduction of imprisonment for up to 6
months as a penalty option. Other provisions are introduced and
existing provisions strengthened to increase the effectiveness of the
compulsory insurance provisions.
The definition of worker is extended to make it clear that, where the
worker has died, the legal personal representative or dependents of the
worker are included.
The method of determining the current weekly wage rate of a worker
is adjusted to avoid prejudice to a worker who is employed by more
than one employer.
Explanatory note page 3
(w) It is made clear that the exception under section 15 1B by virtue of
which a worker may recover both certain common law damages and
compensation under the Act is not activated simply by a failure to
recover certain damages or compensation because of an agreement or
compromise between parties.
(x) It is made clear that, under section 151Z, the entitlement of a workers
compensation insurer (who has paid compensation to an injured
worker) to be indemnified by a negligent third party responsible for
the injury extends to cases where the worker's employer was partly
responsible for the negligence.
(y)
It is made clear that clause 2 of Schedule 1 (which makes a contractor
a notional worker in certain circumstances) applies as long as the
contractor does not employ one or more workers, but does not
override the exclusion in the general definition of worker in section 3
of the Act of casual workers.
(z)
Provision is introduced to enable the issue of penalty notices for
offences.
(aa) Miscellaneous amendments are made to reduce litigation and other
costs by clarifying various provisions, rectifying anomalies and
increasing procedural efficiency.
Occupational Health and Safety Act 1983
The following amendments are made:
(a) Penalties for offences against the Act are increased.
(b)
The requirement that occupational health and safety inspectors must
give notice before entering a place of work will be removed and
replaced with a requirement to give notice as soon as reasonably
practicable after entry.
(c) Provisions are included to empower authorised officers of employee
organisations to enter places of work to investigate suspected breaches
of occupational health and safety laws.
(d)
The Minister will be empowered to call for reports into accidents and
other dangerous occurrences at places of work and will be specifically
authorised to make those reports public.
(e) Provision is made for alternative convictions in respect of certain
offences against the Act.
Explanatory note page 4
Provisions currently in the regulations which give power to inspectors
to require a contravention or likely contravention of the Act to be
remedied, or to prohibit any activity which is an immediate risk to
health and safety, are transferred to the Act and expanded so as to
allow for higher penalties for breaches and for review and appeal
against such requirements or prohibitions.
The jurisdiction of a Local Court to impose a penalty for an offence
against the Act or the regulations is increased.
A court that convicts a person of an offence against the Act or the
regulations is given power to order the person to remedy any
continuing contravention of the Act or the regulations.
The time limits for instituting proceedings against the Act or the
regulations are extended in certain circumstances.
The circumstances in which a director or manager of a corporation can
be convicted of an offence against the Act or the regulations in respect
of a contravention by the corporation are extended by removing the
defence that the director had no knowledge of the contravention.
Other existing defences available to directors and managers remain.
A provision which allows a court to impose an additional penalty of
up to 2 years imprisonment in respect of a person who is convicted of
an offence and has previously been convicted of the same offence is
extended to allow additional monetary penalties to be imposed in such
situations and so that the additional penalty applies in respect of any
further offence against the Act (whether or not the further offence is
the same as the earlier offence). Higher additional penalties are
imposed for more serious offences while lower additional penalties are
imposed for less serious offences.
The responsibilities of suppliers of plant or substances under the Act
are extended to the situation where supply is by way of transfer
(amendment to section 18).
The disturbance of plant, or workplaces, involved in fatalities or
certain dangerous occurrences is prohibited and inspectors are
empowered to give directions against the use of plant involved in
certain occurrences (subject to certain safeguards and review).
Inspectors are empowered to examine, test and dismantle plant, to take
tape recordings and to seize plant in certain circumstances (subject to
safeguards and review).
Explanatory note page 5
Inspectors and authorised officers are empowered to require a person
to identify himself or herself if the inspector or officer reasonably
suspects the person has committed an offence.
Provision is inserted to enable the review of the exercise of certain
powers of inspectors.
The provisions on industry codes of practice are amended to allow
revocations to take effect from a day that is later than the date when
notice of the revocation is published.
Provision is inserted to enable a court before which a summary trial
for an offence takes place to order a convicted offender to reimburse
the Workcover Authority for its expenses in examining or testing
plant.
Compensation Court Act 1984
The following amendments are made:
The provisions for medical panels are amended to require a panel to
comprise medical practitioners nominated by both employer and
employee organisations.
The existing provisions for allocation of matters as between Judges
and Commissioners of the Court, which the Chief Judge is responsible
for arranging by reference to criteria such as complexity and a list of
scheduled matters, are varied by allowing Commissioners to deal with
pain and suffering compensation claims, specifying that only
Commissioners may hear application for revocation of a conciliation
officer's payment direction, and also allowing regulations to prescribe
different allocation arrangements.
Appeals from Commissioners to Judges are restricted to questions of
law, admission or rejection of evidence or question as to the misuse of
statutory discretion.
Appeals from Judges to the Court of Appeal are restricted to questions
of law or the admission or rejection of evidence.
A new position of Senior Commissioner is provided for in the Act.
That Officer is to be a member of the Court's rule committee and is to
have such other functions as may be prescribed by the regulations and
the rules.
Various consequential amendments are made to reflect the expanded
role of commissioners under the Workers Compensation Act 1987.
Explanatory note page 6
Construction Safety Act 1912, Factories, Shops and
Industries Act 1962 and Dangerous Goods Act 1975
The following amendments are made:
(a) Penalties for offences against the Acts are increased.
(b)
The jurisdiction of a Local Court to impose a penalty for an offence
against the Acts or the regulations under those Acts is increased.
(c) Provision is inserted in the Construction Safety Act 1912 to allow a
powderman's certificate to be refused or suspended if there is an
apprehended violence order against the person applying for or holding
the certificate.
Workers' Compensation (Dust Diseases) Act 1942 (repeal of
Workmen's compensation (Broken Hill) Act 1920)
The Workmen's Compensation (Broken Hill) Act 1920 is repealed and
consequential provisions are inserted in the Workers' Compensation (Dust
Diseases) Act 1942 (including provision for the continuation of entitlements
under the repealed Act).
Amendments to other Acts
The following amendments are made:
The Public Finance and Audit Act 1983 and the WorkCover
Administration Act 1989 are amended as a consequence of the
proposed repeal of the Workmen's Compensation (Broken Hill) Act
1920.
The Justices Act 1902 is amended to provide for the enforcement of
penalty notices issued for offences under the Workers Compensation
Act 1987.
The Statutory and Other Offices Remuneration Act 1975 is amended
to provide for the remuneration of the Senior Commissioner and
part-time commissioners of the Compensation Court.
The Defamation Act 1974 is amended to provide defamation
protection for conciliation officers in respect of certificates they will
be able to issue under the Workers Compensation Act 1987 as to the
results of conciliation and for a fair report of such a certificate.
Explanatory note page 7
Clause 2 provides for the commencement of the proposed Act on a day or
days to be proclaimed, except for the amendments concerning the 6%
threshold for hearing loss claims which commence on the date of assent.
Clause 3 gives effect to the amendments to the Workers Compensation Act
1987 as set out in Schedule 1 .
Clause 4 gives effect to the amendments to the Occupational Health and
Safety Act 1983 as set out in Schedule 2.
Clause 5 gives effect to the amendments to the Compensation Court Act
1984 as set out in Schedule 3.
Clause 6 gives effect to the amendments to the Construction Safety Act
1912 as set out in Schedule 4.
Clause 7 gives effect to the amendments to the Factories, Shops and
Industries Act 1962 as set out in Schedule 5 .
Clause 8 gives effect to the amendments to the Dangerous Goods Act 1975
as set out in Schedule 6.
Clause 9 gives effect to the amendments to the Workers' Compensation
(Dust Diseases) Act 1942 as set out in Schedule 7.
Clause 10 gives effect to the amendments to the other Acts contained in
Schedule 8.
Schedule 1
Amendment of Workers Compensation
Act 1987
Freezing of indexation of lump sum compensation for
permanent disabilities and pain and suffering
Currently the Act provides for the automatic indexation of the maximum
amounts of compensation payable for permanent disability and pain and
suffering, in line with movements in weekly award rates of pay. The Bill
removes the provisions for automatic indexation and so freezes the amounts
payable for that compensation at current levels. The maximum amount
payable for permanent disability under section 66 of the Act is $132,300 for
any one disability and $160,950 for 2 or more disabilities resulting from the
one injury. The maximum amount payable for pain and suffering under
section 67 of the Act is $66,200. Provision is included to enable the
regulations to reintroduce indexation of these amounts in the future. (See
Schedule 1 [19], [24], [37] and [38])
Explanatory note page 8
Clarification that pain and suffering compensation limited to
permanent disability
The Bill makes it clear that the compensation for which the Act provides for
pain and suffering resulting from a permanent disability is not payable for
other pain and suffering that may have resulted from the injury which caused
the disability. For example, a worker who suffers pain and suffering from an
injury before the onset of a disability that eventually arises from the injury is
not entitled to pain and suffering resulting from the injury before the onset
of the disability but is entitled to pain and suffering resulting from the
disability itself. (See Schedule 1 [25])
6% threshold for deafness claims
The Bill inserts a new section 69A that provides for a 6% eligibility
threshold for compensation for industrial deafness, so that no lump sum
disability compensation is payable unless the worker's hearing loss reaches
6%. The new section contains an example of how the changes will work in
practice. It also requires hearing loss to be assessed on the basis of a loss in
both ears to ensure that a disproportionate loss in one ear does not lead to
anomalous application of the new threshold.
The amendments do however provide that the worker will still be entitled to
claim the cost of hearing tests, at 3 year intervals (or when the worker leaves
the noisy employment) to ascertain whether the threshold level has been
reached. Under the amendments, the proposed threshold will apply to
compensation claims in relation to deafness lodged with the employer/
insurer on or after 10 November 1995 (the date announced as the
commencement of the threshold). (See Schedule 1 [30])
Compensation for psychological injury
The Bill provides that no compensation is payable for psychological injuries
such as stress unless employment was a substantial (in the sense of real and
important) cause of the injury and the injury was not wholly or
predominantly caused by reasonable action by the employer concerning
transfer, demotion, promotion, discipline, performance appraisal,
retrenchment or dismissal of workers or provision of employment benefits to
workers.
Psychological injury is defined to mean any psychological or psychiatric
disorder and extends to include the physiological effect of such a disorder on
the nervous system. The new provision does not however affect any
entitlement to compensation for an injury of a physical nature even if that
injury may be a symptom or effect of psychological injury.
Explanatory note page 9
Medical certificates supporting claims for weekly benefits for alleged
psychological injury will be required to give a proper medical diagnosis of
the worker's condition (without using terminology such as "stress") and to
comment on whether the worker's employment is likely to have been a cause
of the injury. (See Schedule 1 [6])
Abolition of interest on lump sum compensation for
non-economic loss
The Bill transfers to the Act as section 113 a provision that is currently
section 19 of the Compensation Court Act 1984. That section currently
provides for the payment of interest between the date a cause of action arises
and award of compensation. The section is amended by the Bill to abolish
interest for that period on lump sum compensation for permanent disability
and pain and suffering. Section 67 (3A) is repealed consequentially. (See
Schedule 1 [58] and [26] and Schedule 3 [6])
Interest on common law damages
The Bill substitutes existing section 151M dealing with the payment of
interest on common law damages. As substituted, the section will abolish
entitlements to interest on damages for non-economic loss (and for domestic
services, nursing and attendant or respite), claimed by a worker for an
employment-related injury, and will restrict interest on damages for
economic loss to three-quarters of the standard court rate. These
amendments are in line with changes made in 1994 to corresponding
provisions in the Motor Accidents Act 1988. (See Schedule 1 [7 l])
Pre-existing impairment of the neck, back or pelvis
The Bill inserts a new section 68A that provides for a reduction in
compensation payable for permanent impairment of the back, neck or pelvis
in line with the proportion of the impairment that is due to a pre-existing
condition, abnormality or injury. The result will be that the employer will
only be liable for the part of impairment actually caused by the work injury.
The provision extends to other permanent losses of bodily function that may
be suffered as a consequence of permanent impairment of the back, neck or
pelvis. The intention is to minimise reluctance by an employer to employ. a
previously injured worker, or one with existing back weakness, because of
concern about being held liable for the pre-existing condition. To avoid
litigation seeking to determine the precise percentage of pre-existing
impairment, the amendments provide that where it is clear that the worker
Explanatory notes page 10
did have some pre-existing impairment but there is an absence of medica1
evidence to ascertain the percentage, 10% of the worker's overall back etc
impairment may be taken as the proportion to be deducted for that purpose.
(See Schedule 1 [29])
Compensation for HIV/AIDS
The Bill inserts provision for the payment of lump sum disability and pain
and suffering compensation for work related HIV infection or AIDS. Either
HIV infection or AIDS will entitle the worker to the maximum lump sum
disability compensation and lump sum compensation for pain and suffering.
Compensation is not payable for both HIV and AIDS. No compensation is
payable if HIV or AIDS was acquired by voluntary sexual activity or illicit
drug use. (See Schedule 1 [28] and [34])
Compensation for bowel injury
The Bill provides lump sum disability and pain and suffering compensation
for permanent loss of bowel function. It is specified that the maximum
disability payment for that category of loss is payable where the worker
requires a permanent ileostomy or colostomy. (See Schedule 1 [31] and
[36])
Time limits on claim lodgment
The Bill amends section 92 of the Act to impose an upper limit of 3 years
on the lodgment of a workers compensation claim unless there are
exceptional circumstances. Failure to lodge a claim within the required
period operates as a bar to recovery of compensation. The requirement to
make the claim within 3 years refers to when the worker first claims any
compensation for the injury, so that if some further part of compensation is
claimed later, the time limit will already have been fully met by the initial
claim. (See Schedule 1 [39]-[41])
Touting and other unscrupulous activities
The Bill designates claims for industrial deafness (and other prescribed
claims) as protected claims. An agent who engages in prohibited conduct in
relation to those claims is guilty of an offence (maximum penalty up to
$5,000) and is not entitled to recover any fees or costs that would otherwise
be payable for services relating to the claim. Examples of prohibited conduct
Explanatory note page 11
in this context include unsolicited direct telephone marketing of
claim-related services to a person, to encourage that person to make a
protected claim and to use the services of the agent (or other person from
whom the agent receives any payment), and the making of deliberately
misleading statements about workers compensation entitlements.
Provision is also included to require that a lawyer or agent is not entitled to
payment (for services involving a protected claim) from a person such as a
workers compensation insurer, unless it is certified that the claim was not
paid as a result of prohibited conduct by the lawyer or agent. The
Workcover Authority will be authorised to notify insurers and self-insurers
that specified persons, whom the Authority is satisfied have persistently
engaged in prohibited conduct, are not entitled to recover fees or costs in
connection with claims. A person must be given a reasonable opportunity to
make submissions before being made the subject of such a notification and
an appeal lies to the Compensation Court. (See Schedule 1 [68])
Cost penalties for unreasonable refusal of settlement offer
and consequences of claims delays
The Bill authorises the Compensation Court to order that legal costs not be
payable where there has been an unreasonable refusal of an offer of
settlement, or failure to provide particulars sufficient to enable an offer of
settlement to be made, which the Court is satisfied has prolonged litigation
or added to the overall costs incurred. These orders as to costs will have the
effect (unless the Compensation Court otherwise orders in special cases) that
the legal representative of either the worker or the employer/insurer, as
relevant to the case, will not be able to recover legal fees (because of the
unreasonable refusal). The Bill also allows the Court and conciliation
officers to report to the Workcover Authority on delays by insurers in
dealing with claims and cases of insurers being responsible for costs being
unreasonably incurred in proceedings. The Authority is authorised to take
appropriate action on the basis of such reports, including possible reduction
in the management expenses payable to the insurer concerned. (See
Schedule 1 [43] (proposed section 94B) and [58] (proposed section 119))
Restrictions on commencing court proceedings unless claim
lodged with employer/insurer
The Bill restricts litigation on weekly compensation matters to situations
where' the worker has properly claimed against the employer/insurer in the
first instance. In particular, court proceedings seeking weekly payments
Explanatory note page 12
cannot be commenced unless the employer/insurer has failed to pay within
21 days after the worker's claim or, secondly, the employed/insurer
terminates or reduces those payments. Similarly, the amendments state that
court proceedings may not be commenced in relation to a lump sum
disability claim under section 66 until 12 weeks after due lodgment of the
claim. However, the 12 week non-litigation period may be extended if the
employer/insurer promptly processes the claim (which includes giving the
worker a written acknowledgment of receipt of the claim) and (within the 12
weeks) refers a resulting dispute to a medical panel. (See Schedule 1 [56])
Expanded role for medical panels
The 12 week non-litigation period mentioned above, as well as allowing an
opportunity for proper processing of lump sum disability claims and
reference to conciliation, allows scope for reference of medical disputes for
assessment by medical panels. A further 2 week cooling-off period provided
following issue of a medical panel's certificate gives further opportunity for
negotiations to settle the matter using that certificate.
Medical panels will only be able to issue conclusive certificates (with
existing exceptions regarding back impairment etc) where court proceedings
have been commenced, if the worker did not go through the 12 week
litigation-prohibition procedure mentioned above to permit non-litigious
resolution.
The Bill specifies that medical panels (even where they have issued binding
certificates on disputed disability questions) may correct miscalculations and
mistakes in a certificate.
Parties will be free to agree to refer a medical question to an independent
medical arbitrator (of their choice) as a substitute for an official panel, with
the resulting opinion to be binding only if they agree. Provision is made for
special payments to workers who use that procedure (in recognition of the
legal and other costs thus saved by the employer/insurer).
Special provisions are introduced enabling the Senior Conciliation Officer to
refer disputed medical questions for assessment by medical panels. The Bill
provides that regulations may specify that the resulting certificate of a
medical panel concerning questions of the existence, nature and extent of
loss or impairment for the purpose of lump sum disability claims may be
binding (this procedure will not be available in a case where court
proceedings have commenced). However, in any other circumstances the
resulting medical panel certificate will only have prima facie evidentiary
value. (See Schedule 1 [61][66])
Explanatory note page 13
Claims procedures and conciliation
Requirements are introduced for insurers to always give claimants written
notice when liability for a claim is denied. The notice must include the
reason for denial, information about conciliation and a statement that the
worker can seek assistance from his or her union or from a lawyer. A copy
of that notice will form part of the information which insurers must provide
under existing provisions concerning disputes about commencing weekly
payments, when referring such disputes for conciliation. That arrangement
for referring weekly payment disputes for conciliation is extended by the
Bill to disputes about continuation of such payments. However, these
provisions will not prevent the commencement of proceedings in the
Compensation Court about the dispute or make conciliation a pre-condition
to such proceedings. Various procedural changes are made to conciliation
provisions, including provisions about obtaining documents and arranging
conferences, to make conciliation more effective.
Workers will not be required to furnish documents or attend such
conferences unless they have legal representation.
Existing provisions allowing an insurer, if it has a "reasonable excuse",
longer than the normal 21 days (after lodgment of claim) to assess a claim
for weekly payments and refer any resulting dispute for conciliation are
amended to specify that such an excuse can only operate for an additional 21
days at the most. (See Schedule 1 [43] (proposed section 94A), [45][48],
[50][53])
Expanded role for commissioners
At present, commissioners of the Compensation Court have jurisdiction in a
range of workers compensation matters specified in Schedule 3 to the
Compensation Court Act 1984 that are allocated to commissioners by the
Chief Judge. An appeal lies to a Judge of the Compensation Court from any
decision of a Commissioner. The Bill will provide for commissioners to have
exclusive jurisdiction in certain workers compensation matters (to be
specified by the regulations). An appeal will lie to a Judge of the
Compensation Court but only on a question of law, misuse of a statutory
discretion or a question on the admission or rejection of evidence.
(See Schedule 2, which contains the amendments to the Compensation
Court Act 1984)
Explanatory note page 14
Fixing of maximum legal and medico-legal costs
The Bill inserts new regulation making powers allowing regulations (which
may apply by reference to or prevail over regulations under the Legal
Profession Act 1987) to set maximum legal fees, including medico-legal
costs, above which the employer/insurer (as well as the worker) is not liable.
(See Schedule 1 [58] (proposed sections 117 and 118))
Maximum medical, hospital and rehabilitation costs
The Act currently contains provisions that allow an injured worker to
recover medical, hospital and rehabilitation costs from the employer as
workers compensation. The Act and the regulations fix maximum amounts
that can be recovered. The Bill inserts a new provision that will prevent
recovery against the injured worker above the amounts that the worker is
entitled to recover as compensation for those costs. (See Schedule 1 [16]
and [17])
Return-to-work plans
The Bill inserts a regulation making power (proposed section 152A)
authorising regulations to require employers to prepare return-to-work plans
for injured workers. A consequential amendment is made to section 43A to
replace references to rehabilitation plans with references to return-to-work
plans. (See Schedule 1 [14] and [75])
Enforcement of requirement for workers compensation
insurance
The current penalty of up to $20,000 for failure by the employer to insure
under the Act is increased to include imprisonment of up to 6 months.
Provisions are also introduced specifying that injured directors of uninsured
companies may not claim against the Workcover Uninsured Fund and that,
where that Fund has to pay compensation to injured employees (other than
directors, who are excluded) the Workcover Authority may recover the debt
owing to the Fund personally against a director of the company. The director
is then entitled to recover the amount back from the company. Procedural
improvements are made to make the current civil penalty for non-insurance
(twice the avoided premium recoverable by the Authority as a debt) more
effective against defaulting employers. As well, the Bill allows for
regulations to prescribe an amnesty period for defaulting employers to obtain
insurance. (See Schedule 1 [67], [76] and [77][81])
Explanatory note page 15
Clarification that expression "worker" extends to legal
personal representative or dependants of deceased worker
The Bill amends section 3 to make it clear that the term "worker" includes,
in relation to a deceased worker, the legal personal representative or
dependents of the worker. Transitional provisions make it clear that this
amendment is for clarification only and accordingly applies in respect of any
worker, including a worker who died or was injured before the
commencement of the amendment. (See Schedule 1 [3])
Currently weekly wage rate of person employed by more
than one employer
New section 42 (7A) provides that for the purposes of calculating the
current weekly wage rate of a worker who is employed under more than one
contract of service with more than one employer, the current weekly wage
rate must not be less than what it would have been if the worker had been
employed only in the employment in which he or she received an injury.
(See Schedule 1 [9])
Clarification of provisions relating to damages and
compensation
Section 151B is amended to make it clear that damages can be claimed and
retained under that section's exceptions only when it is that section itself that
is the reason why a party would otherwise lose certain damages or
compensation.
At the same time, section 151B (4) is renumbered as subsection (3) because
the amendment in the Workers Compensation Legislation Amendment Act
1995 that would, if commenced, have inserted section 151B (3) is repealed
by Schedule 8 to the Bill. (See Schedule 1 [69] and [70])
Insurance liability for common law claims for occupational
diseases "straddling" commencement of the Act
The Bill amends existing section 151AB which applies where a number of
insurers may each be partly liable to contribute to an employer's liability at
common law to a worker who has contracted an occupational disease. This
situation may occur if the employer has been covered by various workers
compensation insurers over the period during which the disease was
contracted. The current version of section 151AB has the effect that liability
Explanatory note page 16
to indemnify the employer rests solely with the insurer who covered the
employer when the worker was last employed in employment to the nature
of which the disease was due (that is, in duties involving a risk of
contracting the disease). The amendments made by the Bill will adjust this
arrangement so that, in circumstances where part of the liability arose before
the commencement of the Act and part arose afterwards, liability is divided
equally between the insurer who covered the employer immediately before
the commencement and the insurer who covered the employer after the
commencement and when the worker was last employed in relevant
employment. For those cases the amendments nominate the insurer after that
commencement as the one normally responsible for dealing with and
defending the claim, unless the 2 insurers otherwise agree or the Court
otherwise orders. (See Schedule 1 [73] and [74])
Clarification of insurer's entitlement to be indemnified by a
negligent third party
Section 151Z is amended to make it clear that, despite the High Court
decision on a forerunner of that section in PTC NSW v Murray-More ( l 975)
49 ALJR 302, section 151Z enables a workers compensation insurer to take
action against a negligent third party (who was responsible for the worker's
injury) to obtain reimbursement for compensation paid by the insurer, even
in circumstances where the worker's employer was also partly negligent.
(See Schedule 1 [72])
Clarification of Schedule 1 Deemed employment of workers
Clause 2 of Schedule 1 is amended to make it clear that it does not matter
whether a contractor employs 1 or more than 1 worker, for the exception in
clause 2 (1) to operate. This means then, that despite the decision in Monier
v Szabo (1992) 28 NSWLR 53, a contractor cannot be deemed to be a
"worker" even if the contractor employs only' one person. (See
Schedule 1 [91])
Deemed employment
Clause 2 of Schedule 1 is further amended to exclude from the provisions
under which an outworker or other contractor is taken to be a worker for the
purposes of the Act a person who is a registered player of a sporting
organisation. (See Schedule 1 [92])
Explanatory note page 17`
Penalty notices
The Bill inserts a standard provision (proposed section 278A) that allows
the regulations to specify offences under the Act that can be dealt with by
means of a penalty notice. (See Schedule 1 [89])
Other amendments to prevent unnecessary litigation
The Bill makes the following amendments to prevent or avoid unnecessary
court proceedings:
Section 66A currently provides for the registration by the WorkCover
Authority of agreements for the payment of lump sum compensation
for occupational diseases. The worker is not entitled to receive any
additional compensation once an agreement is registered (with
safeguards for fraud and inadequate compensation). The Bill extends
section 66A to all lump sum compensation agreements (not just those
that relate to occupational diseases). (See Schedule 1 [20][22])
The Bill inserts a new section 66B which prevents proceedings being
taken in the Compensation Court merely for entry up of judgment for
an award to give effect to an agreement for compensation (of the kind
that can be registered under section 66A). (See Schedule 1 [23])
Miscellaneous amendments
The Bill makes the following miscellaneous amendments:
(a)
The Bill imposes additional requirements with respect to the
obligation of employers to provide information to workers to enable
them to calculate wage rates and related details. Currently the
information is required to be' provided in writing at the request of the
worker (with no time specified for compliance by the employer) and
there is an offence for failure to comply with such a request. The Bill
will impose an upper time limit of 28 days on compliance with a
request for information (with power for the regulations to change the
time for compliance). The regulations will also be able to impose
requirements as to the form and manner in which the information is to
be given and will be able to require employers to certify as to the
completeness and accuracy of the information. The offence will be
changed to introduce a defence of reasonable excuse. The penalty for
the offence will remain at 20 penalty units ($2,000). (See Schedule 1
[10])
Explanatory note page 18
A further amendment relates to the operation of section 22 of the Act
concerning apportionment of compensation liability where the
worker's incapacity or bodily loss etc is partly caused by 2 or more
injuries at different times. The amendment clarifies that the term
"apportionment" is used in the ordinary sense of dividing shares,
rather than some more limited technical sense which might confine the
operation of the section to unusual cases (such as where the worker's
incapacity results fully from each different injury, rather than the more
common situation of resulting partly from each). (See Schedule 1 [7])
The Bill makes it clear that insurers licensed on a statutory fund basis
do not have beneficial ownership of the statutory funds managed by
them, but hold the assets of the fund on trust for the purposes of the
Act. Those purposes include meeting claims under workers
compensation insurance contracts which insurers enter into with
employers whose premiums are paid into the statutory fund
concerned. (See Schedule 1 [82])
The Bill provides that, where the Compensation Court reviews an
award previously made by it (because of change of circumstances) and
orders that the workers compensation entitlement be ended or reduced
from a date prior to the order, the worker can be ordered to refund
payments already received to which there was no proper entitlement.
Workers can already be ordered to refund payments in that situation,
except that, at present, the repayment order may have to be obtained
by the employer/insurer in separate proceedings in another court after
the Compensation Court has conducted its review. This is because the
existing provisions of the Workers Compensation Act 1987 have been
interpreted as limiting the Compensation Court's power to order
repayments. The purpose of the amendment is to avoid duplication of
litigation and related costs. (See Schedule 1 [15])
Savings and transitional provisions
Schedule 6 to the Act is amended to insert various transitional provisions as
a consequence of the above amendments. (See Schedule 1 [94][ 110])
Explanatory note page 19
Schedule 2
Amendment of Occupational Health and
Safety Act 1983
Increased penalties
A number of amendments increase the penalties for offences against the Act.
The maximum penalty for an offence against the Act will be $500,000 in
respect of a corporation and $50,000 in respect of an individual. If the
offence is a further offence, an additional penalty may be imposed. The
maximum penalty that may be imposed for an offence against the regulations
is also increased. (See Schedule 2 [2], [3], [5], [6], [8], [9], [ l l], [12][16],
[19][24], [30], [32], [38] and [39])
Alternative convictions
New section 15 (4) gives a court power, in respect of proceedings against a
person for an offence against section 15 of the Act (Employers to ensure
health, safety and welfare of their employees), to convict the person of an
offence under section 16 of the Act (Employers and self-employed persons
to ensure health and safety of persons other than employees at places of
work) as an alternative conviction. New section 16 (3) contains a reciprocal
provision in respect of proceedings for an offence against section 16. (See
Schedule 2 [4] and [7])
Issue of improvement and prohibition notices
New sections 3 1R--3 1Y give power to inspectors to require a contravention
or likely contravention of the Act to be remedied, or to prohibit any activity
which is not safe or which is a risk to health. An inspector will be able to do
this by issuing an improvement or prohibition notice. The notice may
include directions as to the measures to be taken to remedy any
contravention to which the notice relates. It is an offence to fail to comply
with such a notice. These provisions are based on provisions currently
contained in the Occupational Health and Safety (Inspectors' Notices and
Penalty Notices) Regulation 1988. However, the penalty for non-compliance
with a notice is increased (with prohibition notices having a higher penalty
than improvement notices) and provision is also made for a right to review
of a notice by the Workcover Authority and for appeal against a notice to an
Industrial Magistrate. (See Schedule 2 [28])
Explanatory note page 20
Increased jurisdiction of Local Court
An amendment to section 47 increases the maximum penalty that may be
imposed by a Local Court in proceedings for an offence against the Act or
the regulations from 100 penalty units ($10,000) to 500 penalty units
($50,000) or 2 years imprisonment (or both). (See Schedule 2 [31])
Court may order cause of offence to be remedied
New section 47A provides that a court that convicts a person of an offence
of contravening the Act or the regulations may, if it appears to the court that
it is within the person's power to remedy the contravention, order the person
to take such steps as may be specified by the court to remedy the
contravention. It will be an offence to fail to comply with such an order. (See
Schedule 2 [33])
Increase in time for instituting proceedings for certain
offences against the Act or regulations
New section 49 (2), (3) and (4) provides for an increased time limit for the
institution of proceedings for an offence against the Act or the regulations in
certain circumstances. At present proceedings must be instituted within 2
years after the act or omission constituting the offence concerned. New
section 49 (2) provides that, where the act or omission is an offence against
section 18 (which deals with duties of suppliers and manufacturers to ensure
the health and safety of plants and substances supplied or manufactured for
use at work) proceedings may be instituted within 6 months after it first
becomes apparent to the Workcover Authority that the contravention
concerned has occurred, or within the general 2 year limitation period,
whichever period provides the longer time for proceedings to be instituted.
New section 49 (3) provides for a similar extension for proceedings for an
offence of failure to notify an accident or other matter relating to health and
safety at a place of work. New section 49 (4) provides that, if it appears
from proceedings of a coroner's inquest or a coroner's report that an offence
has been committed against the Act or the regulations, proceedings for the
offence may be instituted within 2 years after those proceedings or the
making of that report. Transitional provisions are inserted to extend these
provisions to any act or omission constituting an offence that occurred
within 2 years before the commencement of the provisions. (See Schedule 2
[34])
Explanatory note page 21
Change in defences for directors and managers charged in
respect of corporate contravention
At present every director or person concerned in the management of a
corporation is deemed to contravene the Act or the regulations if the
corporation contravenes the Act or the regulations. It is a defence for the
director or manager to establish that the corporate contravention occurred
without his or her knowledge, or that he or she was not in a position to
influence the conduct of the corporation, or that he or she used all due
diligence to prevent the contravention. The amendment to section 50
removes the defence that the contravention occurred without the director's or
manager's knowledge. It will still be a defence to establish that the director
or manager was not in a position to influence the conduct of the corporation
or that he or she used all due diligence to prevent the contravention. (See
Schedule 2 [35])
Penalties for further offence against the Act
At present section 5 1A of the Act allows a court that convicts a person of a
second or subsequent offence against the Act (which is a wilful repetition of
an earlier offence) to impose an additional penalty of up to 2 years
imprisonment. This section is replaced. The new section provides that an
additional penalty may be imposed for any subsequent offence against the
Act (whether or not a repetition of an earlier offence). The additional
penalties that may be imposed vary according to the seriousness of the
offence. (See Schedule 2 [36])
Suppliers of plant or substances
Section 18 is amended to extend the concept of ``supply'' to include
transfers as well as sales. (See Schedule 2 [ 10])
Stopping use of plant
New section 2 1B is inserted to prohibit the disturbance of plant, or an area
of a place of work, involved in certain serious occurrences. However, the
section provides exceptions and limits the duration of such a direction.
New section 21 C is inserted to provide that an inspector may direct that
plant must not be used, moved or interfered with if the inspector believes on
reasonable grounds that it is necessary to allow an inspector or examination.
However, the section provides exceptions and limits the duration of such a
direction.
New section 21D provides that directions under this section may be
reviewed under new section 3 1U. (See Schedule 2 [ 17])
Explanatory note page 22
Bowers available on entry
Section 3 1I is amended to empower inspectors to examine or test plant,
substances and things, to dismantle them, and in certain cases to take them
away. Those powers are subject to a notice requirement under new section
3 1T and to a review procedure under new section 3 1 U. Section 3 1I is further
amended to make it clear that an inspector may take video or audio records
in a workplace of an employer or self-employed person. (See Schedule 2
[26] and [27])
New sections 3 1Z3 1 AE deal in greater detail with the mechanism of taking
things away, the giving of receipts for things taken, the forfeiture and return
of those things and the provision to the owner of access to those things. (See
Schedule 2 [28])
Powers of authorised officers and inspectors
New section 5 1C is inserted to empower authorised officers (ie officers
specified by the regulations under existing section 5 1B) and inspectors to
require a person to identify himself or herself if the officer or inspector
reasonably suspects the person has committed an offence. (See Schedule 2
[37])
Industry codes of practice
Section 44A is amended to enable revocations of industry codes of practice
to take effect from a day that is later than the date when notice of the
revocation is published. At present, revocations take effect at the end of the
day of gazettal, but new codes and amendments can take effect on a present
or future date specified in the notice of the code or amendment. (See
Schedule 1 [29])
Orders for reimbursement
Section 47 is amended to enable a court that hears a summary trial for an
offence to order a convicted offender to reimburse the Workcover Authority
for its expenses in examining or testing plant to which the offence relates.
(See Schedule 2 [31 ])
Inspectors' powers of entry
Section 3 1B (which presently requires prior notice by an inspector who
enters a workplace) is replaced with a provision that inspectors must give
notice as soon as reasonably practicable after entry, with exceptions for
urgency and other circumstances where notice would not be appropriate or
necessary. (See Schedule 2 [25])
Explanatory note page 23
Powers of entry of trade union officials
New sections 3 1AF3 1AP confers on authorised officers of industrial
organisations of employees powers of entry to a place of work where the
organisations members work. The powers concerned closely parallel some of
the powers of Workcover inspectors. See Schedule 2 [28])
Reports on accidents and dangerous occurrences
New section 3 1AQ enables the Minister to call for reports from the
Workcover Authority on accidents and dangerous occurrences and
authorises the Minister to make those reports public or table them in
Parliament. Appropriate protections from liability are provided by the
section. (See Schedule 2 [28])
Schedule 3
Amendment of Compensation Court
Act 1984
Membership of medical panels
The Bill provides that medical referees arranged for medical panels are to be
chosen on the basis of their relevant specialty or experience and that each
panel must include one medical referee nominated by employer
organisations and one nominated by employee organisations.
Expanded role of commissioners
The amendments provide that the Compensation Court is to be constituted
either by a single Judge or a single Commissioner. Provision is made for
appointment of a Senior Commissioner.
Under the amendments, appeals to a Judge of the Court will be available
against a decision of a Commissioner on questions of law, the admission or
rejection of evidence or misuse of a statutory discretion.
Appeals from decisions of Judges
The Bill restricts appeals from decisions of Judges of the Compensation
Court to the Court of Appeal to questions of law and the admission or
rejection of evidence.
Explanatory note page 24
Miscellaneous amendments
The Bills makes the following miscellaneous amendments:
(a) The existing provision exempting liability to make weekly
compensation payments from any order for stay of proceedings when
the award under which the payments are made is appealed against is
amended to limit that exemption to weekly payments in respect of the
period after the award. (See Schedule 3 [22])
(b)
Provision is inserted to enable the Court to admit historical evidence
and general medical and other evidence about exposure to noise in the
workplace, to avoid repetition of the same evidence in a number of
different proceedings. (See Schedule 3 [ 10])
(c) Provision is inserted for payment of the costs of mediators and neutral
evaluators of the Court out of the Workcover Authority Fund (from
which the Court's operations are currently financed) rather than
charging the parties for those costs. (See Schedule 3 [23])
Schedule 4
Amendment of Construction Safety Act 1912
Increased penalties
The amendments increase the penalties for offences against the Act. The
maximum penalty for an offence against the Act will be $50,000 in respect
of a corporation and $25,000 in respect of an individual. The maximum
penalty that may be imposed for an offence against the regulations is also
increased. (See Schedule 4 [3], [5], [6] and [8])
Increased jurisdiction of Local Court
The amendment to section 21 (3) increases the maximum penalty that may
be imposed by a Local Court in proceedings for an offence against the Act
or the regulations from 100 penalty units ($10,000) to 500 penalty units
($50,000). Transitional provisions are also inserted in the Act. (See
Schedule 4 [7] and [9])
Powdermen's certificates
Section 17A is amended to make the existence of an apprehended violence
order against a person a ground for refusing to issue a powderman's
certificate to the person, or for suspending a certificate that the person
already has. One effect of refusal or suspension is to remove a basis on
which the person could seek a permit under the Dangerous Goods Act 1975
to receive explosives. (See Schedule 4 [l] and [2])
Explanatory note page 25
Schedule 5
Amendment of Factories, Shops and
Industries Act 1962
Increased penalties
The amendments increase the penalties for offences against the Act. The
maximum penalty for an offence against the Act will be $50,000 in respect
of a corporation and $25,000 in respect of an individual. The maximum
penalty that may be imposed for an offence against the regulations is also
increased.
Increased jurisdiction of Local Court
The amendment to section 145 increases the maximum penalty that may be
imposed by a Local Court in proceedings for an offence against the Act or
the regulations from 100 penalty units ($10,000) to 500 penalty units
($50,000). Transitional provisions are also inserted in the Act. (See Schedule
5 [6] and [9])
Schedule 6
Amendment of Dangerous Goods Act 1975
Increased penalties
The amendments increase the penalties for offences against the Act. The
maximum penalty for an offence against the Act will be $50,000 in respect
of a corporation and $25,000 in respect of an individual and $1 0,000 per day
in respect of a continuing offence. The maximum penalty that may be
imposed for an offence against the regulations is also increased.
Increased jurisdiction of Local Court
The amendment to section 33 increases the maximum penalty that may be
imposed by a Local Court in proceedings for an offence against the Act or
the regulations from 100 penalty units ($10,000) to 500 penalty units
($50,000). Transitional provisions are also inserted in the Act. (See Schedule
6 [ 17] and [21])
Explanatory note page 26
Schedule 7
Amendment of Workers' Compensation (Dust
Diseases) Act 1942
The Workmen S Compensation (Broken Hill) Act 1920 ("the Broken Hill
Act") is repealed. The Workers' Compensation (Dust Diseases) Act 1942
("the Dust Diseases Act") is amended to make savings and transitional
provisions consequent on that repeal and to provide for the making of further
savings and transitional provisions by regulation. Among other things, the
transitional provisions provide for the transfer of the balance of the
compensation fund under the Broken Hill Act to the fund under the Dust
Diseases Act and for the continuation of the entitlements of claimants under
the Broken Hill Act in accordance with the Dust Diseases Act. A provision
that excluded Broken Hill mine owners from the scheme under the Dust
Diseases Act is removed and other consequential amendments are made to
the Act.
Schedule 8
Amendment of other Acts
Schedule 8 makes amendments to the Public Finance and Audit Act 1983
and the WorkCover Administration Act 1989 that are consequential on the
repeal of the Workmen's Compensation (Broken Hill) Act 1920.
Schedule 3 (Amendments relating to interim payment of damages) to the
Workers Compensation Legislation Amendment Act 1995 No 30 has never
commenced and is repealed.
The Statutory and Other Offices Remuneration Act 1975 is amended to
provide for the remuneration of conciliation officers.
The Defamation Act 1974 is amended to extend the protections for
defamation currently afforded to conciliation officers so as to include
certificates given by conciliation officers as to the results of conciliation (to
be issued under amendments proposed to be made by the Bill to the Workers
Compensation Act 1987), and with respect to fair reports of those
certificates.
The Justices Act 1902 is amended to apply the enforcement mechanisms
under that Act that apply to penalty notices under most Acts to apply to
penalty notices under the Workers Compensation Act 1987.
Explanatory note page 27