WORKCOVER LEGISLATION AMENDMENT BILL 1996 Explanatory Notes

WORKCOVER LEGISLATION AMENDMENT BILL 1996

Bill 1996 (No 2)

Explanatory note

This explanatory note relates to this Bill as introduced into Parliament.*

Overview of Bill

The Workers Compensation Act 1987 is amended as follows:

(a) to limit payment of workers compensation to claims where work is a

substantial contributing factor,

(b) to remove fault restrictions on workers compensation coverage on

journeys to and from work,

(c) to provide for the discontinuation of weekly payments after 2 years

where the worker is not seeking suitable employment,

(d) to reduce maximum lump sum benefits by 25%,

* Amended in committee--see table at end of volume.

to exclude pre-existing disabilities from the assessment of lump sum

compensation for permanent injuries (by extending an existing

provision that currently applies only to back, neck and pelvis injury),

to establish new arrangements for conciliation of disputes about

Compensation, including arrangements for compulsory conciliation

before court proceedings can be commenced,

to provide that the reports and certificates of medical panels are prima

facie evidence as to the worker's condition and to impose limitations

on the admission of other evidence about a worker's condition where a

medical panel report or certificate has been admitted,

to authorise the making of regulations to regulate advertising of

services provided by lawyers and agents in relation to workers

compensation claims,

to change the workers compensation claims excess payable by the

employer from $500 to 2 weeks compensation,

to authorise court rules and regulations about disclosure of medical

evidence to include provision to exclude medical evidence not

disclosed in accordance with the rules or regulations,

to transfer to the Public Trustee certain functions of the WorkCover

Authority concerning administration of compensation payments made

in respect of deceased workers,

to make minor amendments to procedural matters affecting the making

of a claim,

to include as deemed workers covered by the Act participants in

workplace based training schemes prescribed by the regulations,

to increase the penalty for a failure to keep a register of workplace

injuries as required by the Act,

to provide for the banning of cost recovery by legal practitioners who

are directors of or who have a financial interest in a compensation

claims agent who has persistently engaged in prohibited claims touting

activities, and to make other minor and clarifying amendments to

claims touting provisions,

to make general insurers and insurance brokers liable for misleading

representations that induce employers to believe that comprehensive

business insurance packages include or do not require workers

compensation insurance,

Explanatory note page 2

(q) to enable rules of the Compensation Court or the regulations to require

an application commencing proceedings in the Compensation Court to

be accompanied by evidence that certain requirements imposed by

various provisions of the Act as to when proceedings can be

commenced have been complied with,

(r) to bring the provision of the Act that sets the rate of interest to be paid

on common law workers compensation damages into line with the

equivalent provision of the Motor Accidents Act 1988,

(s) to disapply for the period between 78 weeks after injury and the

payment of compensation for 104 weeks provisions of the Act

applying in relation to coal miners that limit the rates of weekly

payments of compensation for incapacity for work to the rates

applicable under the former Act (before the commencement of the

current Act),

(t) to insert a regulation-making power to enable any of the amendments

to be made by this Bill to be modified or disapplied in their application

to coal miners,

(u) to repeal a provision that imposes 5% further thresholds on hearing

loss claims (in addition to the initial 6% loss threshold),

(v) to make minor miscellaneous and clarifying amendments to certain

provisions,

(w) to make consequential amendments including to enact savings and

transitional provisions.

Amendments to other Acts:

(a) the Compensation Court Act 1984 is amended to require consultation

with employer and employee organisations on the appointment of

medical referees for the purposes of the Workers Compensation Act

1987,

(b) the Construction Safety Act 1912 is amended to authorise the

suspension of a powderman's certificate of competency on the ground

of a person's history of violence or threats of violence, and to authorise

the refusal of such a certificate on that ground or on the ground of

there being an apprehended violence order in force against the person,

(c) the Dangerous Goods Act 1975 is amended to authorise the refusal or

suspension of various explosives licences and permits on the ground of

a person's history of violence or threats of violence or the existence of

an apprehended violence order against the person,

Explanatory note page 3

the Industrial Relations Act 1996 is amended to provide a right of

appeal to a Full Bench of the Industrial Relations Commission against

the acquittal of a person for an alleged offence against occupational

health and safety legislation,

the Occupational Health and Safety Act 1983 is amended as follows:

* to give inspectors under that Act power to require persons to

provide information, documents and evidence about

contraventions of the Act and certain related Acts,

* to change the requirements under that Act that prevent places

and things involved in a dangerous workplace occurrence being

moved or interfered with until midnight on the first working day

after the day on which the occurrence was notified, so that the

requirements will apply only until midnight on the next day

(whether or not that day is a working day),

* to remove the automatic stay that applies to a prohibition notice

issued under that Act (a notice prohibiting activities that carry

an immediate risk to health or safety) when a review of the

notice is applied for and instead provide for an application for a

stay to be made to an Industrial Magistrate,

the WorkCover Administration Act 1989 is amended to provide for the

payment out of the WorkCover Authority Fund of the costs associated

with conciliation officers under the Workers Compensation Act 1987,

the WorkCover Legislation Amendment Act 1995 is amended to delete

the following uncommenced amendments:

* an amendment to the Workers Compensation Act 1987 that

would impose a 3-year limit on weekly payments of workers

compensation on stress claims,

* an amendment to the Workers Compensation Act 1987 that

would entitle a party to a conciliation conference to legal

representation,

* an amendment to the Workers Compensation Act 1987 that

would enable an employer to require the employer's workers

compensation insurer to defend a workers compensation claim

made against the employer,

* an amendment to the Compensation Court Act 1984 that will be

overtaken by the amendments to that Act referred to above,

Explanatory note page 4

(h) the Workers Compensation (Bush Fire, Emergency and Rescue

Services) Act 1987 is amended to provide for the payment of workers

compensation to emergency service workers and rescue association

workers for damage, destruction or loss of personal property on their

person, and vehicles, equipment and things in their possession while

carrying out an authorised activity, and personal property and vehicles

while on a journey to or from an authorised activity,

(i) the Workers' Compensation (Dust Diseases) Act 1942 is amended to

close the Dust Diseases Reserve Fund under that Act.

Outline of provisions

Clause 2 provides that the proposed Act will commence on a day or days to

be appointed by proclamation.

Clause 3 is a formal provision that gives effect to the Schedule of

amendments to the Workers Compensation Act 1987.

Clause 4 is a formal provision that gives effect to the Schedule of

amendments to other Acts.

Schedule 1

Amendment of Workers Compensation Act

1987

New conciliation arrangements

Schedule 1.1 makes amendments that provide new concilation arrangements

for the conciliation of disputes involving lump sum workers compensation,

weekly payments of compensation and compensation for hospital, medical

and other expenses. The new provisions apply to claims made after the

commencement of the amendments, subject to the regulations which can

change which claims the new provisions apply to and subject in the case of

hospital, medical and other expenses to the phasing in of the new

arrangements by regulation. The existing conciliation provisions of the Act

continue to apply to claims pending at the commencement of the new

provisions. Some features of the new conciliation scheme are as follows:

* The main feature of the new scheme is that court proceedings will not

be able to be commenced until a dispute has been referred for

conciliation. The dispute will then be screened for conciliation

purposes and can be fast-tracked to the Compensation Court. A worker

will not be able to refer a dispute for conciliation until a certain period

has elapsed after the making of the claim (to allow a reasonable time

for the assessment of the claim) unless the worker is notified that the

Explanatory note page 5

claim is disputed. The current arrangements for weekly Compensation

(under section 102, 103A and 106D) put the onus on the employer/

insurer to refer disputes about weekly payments of compensation to

conciliation. The current provisions for lump sum compensation

(under section 106E) do not require a dispute to go to conciliation

before court proceedings can be commenced and instead provide for a

delay of 12 weeks after the claim is made or (in some cases) until a

medical panel reports on the matter. The current provisions for

hospital, medical and other expenses compensation requires only that a

dispute has arisen about the compensation before court Proceedings

can be commenced.

* Provsision is made for the appointment of new conciliation officers

from the Department of Industrial Relations (currently conciliation

officers are appointed from the WorkCover Authority), and a Principal

Conciliator to have (with respect to new claims) the role of the Senior

Conciliation Officer.

* Different provisions will apply to legal representation before

conciliation officers (so that there will be a right to representation by a

legal practitioner or agent at conciliation conferences).

A number of ancillary amendments are made to increase the effectiveness of

conciliation arrangements, including an amendment to section 119 to require

the court to have particular regard to an unreasonable failure to participate in

conciliation in assessing costs penalties.

Employment required to be substantial Contributing factor

Schedule 1.2 makes amendments to limit the payment of compensation

under the Act to those situations where employment is a substantial

contributing factor to the injury concerned. At present there is no requirement

that employment be a contributing factor to an injury, only that the injury

should have arisen out of or in the course of employment. In the case of an

injury consisting of a disease or the aggravation, acceleration, exacerbation or

deterioration of a disease, there is currently a requirement that employment.

be a contributing factor (but not a substantial contributing factor). The new

requirement will not apply to injuries covered by existing special provisions

for journey claims, recess claims and claims by trade union representatives. A

list of examples of matters to be taken into account for the purpose of

determining whether employment is a substantial contributing factor is

inserted. Consequential amendments are made to a section dealing with

psychological injuries that currently requires employment to be a substantial

cause of such an injury before compensation is payable and to various other

provisions.

Explanatory note page 6

Journey claims

Schedule 1.3 makes amendments to the provisions that entitles a worker to

compensation if the worker is injured on a journey to or from work so as to

remove the exception that disentitles a worker to compensation if the injury is

due to the fault of the worker and replace it with an exception that disentitles

a worker to compensation if the injury is attributable to the serious and wilful

misconduct of the worker. The new exception differs from a similar existing

exception in section 14 that will continue to apply in all cases (not just

journey injuries). The section 14 exception is more difficult to establish

because it requires proof that the injury is solely attributable to the serious

and wilful misconduct of the worker and does not apply where death or

serious and permanent disablement results.

Reduction in maximum lump sum compensation amounts

Schedule 1.4 makes amendments that will reduce by approximately 25% the

maximum lump sum benefits payable under the Act for permanent injuries

and consequent pain and suffering. Under the amendments, the maximum

amount payable for permanent injury will be reduced from $132,300 to

$100,000, the maximum amount payable for 2 or more permanent injuries

will be reduced from $160,950 to $121,000 and the maximum amount

payable for pain and suffering resulting from a permanent injury will be

reduced from $66,200 to $50,000.

Discontinuation of weekly payments after 2 years

Schedule 1.5 makes amendments to provide that weekly payments of

compensation for partial incapacity or temporary permanent incapacity for

work are to cease after 104 weeks of payments if the worker is not seeking

suitable employment or not taking other reasonable return-to-work steps. The

provision will require the worker to be given at least 12 weeks notice of

proposed discontinuation of payments and to be told of the action necessary

to prevent discontinuation.

Deduction for previous injuries and pre-existing conditions

and abnormalities

Schedule 1.6 contains amendments to broaden the application of a provision

introduced in 1995 that requires lump sum compensation payment for

permanent loss to be reduced by the proportion of the loss that is attributable

to previous injuries or pre-existing conditions or abnormalities. The provision

currently applies only to permanent impairment of the back, neck or pelvis.

The amendment will expand the provision so that it applies to all injuries for

which lump sum compensation is payable. The result will be that the

employer will only be liable for the part of a worker's permanent disability

Explanatory note page 7

actually caused by the work injury. The intention is to minimise possible

reluctance by employers to employ or re-employ workers with prior

disabilities because of concern about being held liable for the pre-existing

condition. To avoid litigation seeking to determine the precise percentage of

pre-existing disability the amendments provide that where it is clear that the

worker did have some pre-existing disability but there is an absence of

medical evidence to ascertain the percentage, 10% of the worker's overall

disability (of the bodily part or function affected) may be taken by the insurer

assessing the claim or, in case of a dispute, by a conciliator or the

Compensation Court as the proportion to be deducted for that purpose. The

new provision will also subsume the function of section 71 of the Act,

deleted by the amendments, which dealt with occupational diseases such as

loss of hearing due to industrial noise and required prior losses suffered by

the worker, for which compensation was already paid or payable, to be

deducted from any claim for further loss.

Evidentiary value of medical panel reports and certificates

Schedule 1.7 contains amendmemts to provide that certificates and reports of

medical panels under the Act are prima facie evidence as to a worker's

condition in proceedings in the Compensation Court (to the extent that they

are not already conclusive evidence under existing provisions) and that

further evidence cannot be admitted on the matters of which they are

evidence except with the leave of the Court given in the special

circumstances of the case. A further amendment is made to enable the Court

to order that costs associated with an unsuccessful attempt to admit further

evidence about matters on which a medical panel or report is evidence in the

proceedings are to be treated as unreasonably incurred if not reasonably

justified (with the result that those costs cannot be recovered from another

party or by the solicitor for the party on whose behalf

were incurred). A

transitional provision is inserted to make it clear that the amendments apply

to medical certificates and reports given after the commencement of the

amendments whenever the injury occurred, but not to court proceedings

pending or already determined.

Claims excess payable by employers

Schedule 1.8 makes an amendment that will change the workers

compensation claim excess payable by an employer in respect of each weekly

compensation claim against the employer from $500 (as at present) to an

amount equal to the first 2 weeks of compensation paid on the claim.

Explanatory note page 8

Marketing of legal and agency services

Schedule 1.9 inserts a new provision (and makes consequential transitional

amendments) to give the Workcover Authority power to prevent a solicitor,

solicitor corporation or firm of solicitors from being able to recover fees,

costs and charges in workers compensation matters if the solicitor, a member

of the firm or a voting shareholder of the solicitor corporation is a director of

or has a financial interest in a workers compensation claims agent and the

agent or a director or manager of the agent has persistently engaged in certain

prohibited conduct (such as touting) with respect to claims. The new

provision is an extension of an existing provision that enables Workcover to

prevent the agent in such a case from being able to recover its fees, costs and

charges.

A regulation-making power is also inserted to enable the making of

regulations to control marketing (including advertising) of legal services and

claims agent services that are provided in connection with claims for workers

compensation.

A minor amendment is made to include a claim for the cost of provision of a

hearing aid as one of the claims (a protected claim) to which the Division

about prohibited conduct relating to touting for claims applies.

A further minor amendment inserts a provision to make it clear that the

Division applies to conduct regarding prospective claims, whether or not a

claim is ever actually made.

Transfer of WorkCover Authority functions to Public Trustee

Schedule 1.10 makes amendments that will transfer to the Public Trustee the

functions of the Workcover Authority with respect to the apportionment of

compensation payments between dependants of a deceased worker and with

respect to the investment and administration of compensation payable on the

death of a worker, compensation payable to a person who is mentally ill or

under the age of 18, and certain lump sum commutation payments.

Rules and regulations with respect to medical evidence

Schedule 1.11 makes an amendment that will expand an existing power to

make rules of court and regulations with respect to the disclosure of medical

.reports to medical referees and medical panels so that the rules or regulations

can provide for the exclusion of any report that is not disclosed as required.

Explanatory note page 9

Making a claim for compensation

Schedule 1.12 makes amendments to clarify an existing provision by

providing that an insurer or self-insurer can accept a claim for compensation

made more than 6 months after the injury, accident or death concerned

without the need to obtain the approval of the Authority but that the approval

of the Authority is required to authorise the acceptance of a claim made more

than 3 years after the injury, accident or death. Another amendment makes it

clear that the claim form prescribed or approved under the Act can include an

authority that authorises a provider of medical, hospital or rehabilitation

services to release information relevant to the claim.

Workplace based training programs--deemed employment

Schedule 1.13 makes an amendment to provide that participants in a

Commonwealth funded workplace training program prescribed by the

regulations are taken to be workers employed by the person who provides the

workplace based training concerned. The regulations can also declare

specified payments made under the training program to be the wages, for the

purposes of calculating workers compensation insurance premiums, of the

participants in the scheme.

Penalty increase--requirement to keep register of injuries

Schedule 1.14 makes an amendment to increase from 20 penalty units

($2,000) to 50 penalty units ($5,000) the penalty for a failure by an employer

to keep the register of injuries required by section 90 to be kept at factories,

workshops, shops, offices, mines and quarries.

Misleading conduct by insurers and brokers

Schedule 1.15 inserts a new provision that deals with conduct by insurers

and insurance brokers whereby insurance packages that are marketed as

comprehensive for business do not provide workers Compensation insurance

cover and do not contain a warning about this or that workers compensation

insurance is compulsory for employers. The new provision makes such

conduct an offence and also provides a mechanism whereby culpable insurers

and brokers can be joined as co-defendants and made liable in proceedings

for recovery against employers based on a failure to have workers

compensation insurance when the conduct of the insurer or broker caused or

significantly contributed to the failure to insure.

Explanatory note page 10

Compliance with provisions that restrict commencement of

proceedings

Schedule 1.16 amends provisions inserted in the Act by the WorkCover

Legislation Amendment Act 1995. Those provisions prevent certain

proceedings being commenced or entertained in the Compensation Court

unless certain preconditions have been met (generally that a dispute has

arisen and a specified period has elapsed since the dispute arose). The

amendments will enable rules of the Compensation Court or regulations to be

made that require an application commencing proceedings in the Court of the

kind that are subject to the preconditions to be accompanied by evidence (in

the form of a certificate or other information required by the rules or

regulations) that the preconditions have been met, and preventing the

lodgment of an application that is not accompanied by the required evidence.

Rate of interest on common law damages

Schedule 1.17 amends the provision that deals with the rate of interest

payable on awards of damages in common law workers compensation

matters. The amendment removes an obsolete cross-reference to the rate of

interest applicable under rules of the Supreme Court and replaces it with a

reference to the rate set under the provision of the Supreme Court Act 1970

that provides for the payment of interest on Supreme Court judgment debts.

The rate for workers compensation common law damages is set at

three-quarters of that Supreme Court rate. The amendment brings the

provision into line with the equivalent provision of the Motor Accidents

Act 1988.

Special provisions for coal miners

Schedule 1.18 amends the special transitional provisions that apply to coal

miners. Under those provisions, a coal miner who is partially incapacitated

but not provided with suitable duties is entitled to benefits at the total

incapacity level (deemed total incapacity) with no limit as to how long the

entitlement can continue (until retirement). In the same circumstances, other

workers are entitled to a maximum 104 weeks deemed total incapacity

compensation. The rates of total incapacity benefit and deemed total

incapacity benefit for coal miners remained however at the lower scale of

indexed rate applicable under the former Act. In practice coal miners'

accident pay entitlements top up these rates to the higher levels applicable to

other workers, but only for the first 78 weeks after injury. The purpose of the

amendment is to apply to coal miners the higher rates of total incapacity

Explanatory note page 11

benefit and deemed total incapacity benefits applicable to other workers, but

only during the period between 78 weeks after injury (ie the time at which

accident pay top-up cuts out) and payment of compensation for 104 weeks

(the maximum period of deemed total incapacity entitlement for other

workers). The amendment applies only to a period of incapacity that occurs

after the amendment commences and results from an injury received after the

commencement of the Workers Compensation Act 1987.

The amendments also insert a regulation-making power to enable the

regulations to modify or disapply any of the amendments made by this Bill

(except the top-up compensation amendments referred to above and the

journey claim amendments) in their application to coal miners.

Hearing loss claims

Schedule 1.19 makes amendments to sections 69A and 69B to remove the

5% further loss threshold for hearing loss claims, as inserted by the

WorkCover Legislation Amendment Act 1995. The effect of the 5% further

loss threshold is that having passed the initial 6% hearing loss threshold to be

entitled to compensation or hearing loss a worker would be prevented from

claiming for further hearing loss except in increments of loss of at least 5%.

A transitional provision is inserted to provide that the amendments are taken

to have commenced on the commencement of sections 69A and 69B.

Clarifications and miscellaneous amendments

Schedule 1.20 makes the following

miscellaneous amendments to the Act:

(a) Amendment [ l ] enables the making of regulations to require an insurer

to give a copy of a notice disputing liability in respect of a claim to the

claimant's employer.

(b) Amendments [2]-[5] make minor clarifying changes to provisions

dealing with regulations fixing maximum legal costs.

(c) Amendment [6] makes it clear that an existing provision that imposes

controls on the recovery of solicitor/client costs applies to costs

incurred in respect of a prospective claim (whether or not a claim is

ever actually made).

(d) Amendment [7] makes it clear that the regulations relating to

return-to-work plans for workers can create offences with respect to

failures to comply with return-to-work plans.

Explanatory note page 12

Amendment [8] makes it clear that an employer who fails to provide

certain information (such as the employer's name and address) at the

request of a worker is guilty of an offence whether or not the employer

actually refuses to provide the information.

Amendment [9] amends a transitional provision inserted in 1995 to

make it clear that a reference in the provision to "commencement" is a

reference to the commencement of the provision to which the

transitional provision applies.

Amendment [10] deals with provisions inserted by the WorkCover

Legislation Amendment Act 1995 that prevent certain proceedings

being commenced or entertained in the Compensation Court unless

certain preconditions have been met (generally that a dispute has arisen

and a specified period has elapsed since the dispute arose). The

amendment inserts a transitional provision that makes it clear that

those provisions extend to apply in respect of an injury received before

the commencement of the provisions, but do not apply in respect of

court proceedings pending or determined as at that commencement.

Amendment [11] adds the name of this amending Act to the list of

Acts in respect of which consequential savings and transitional

regulations can be made.

Schedule 2

Amendment of other Acts

Schedule 2.1 amends the Compensation Court Act 1984 to require the Chief

Judge of the Compensation Court to consult with employer and employee

organisations on proposed appointments of medical referees by the Chief

Judge. A consequential amendment is made to the WorkCover Legislation

Amendment Act 1995 to delete amendments to the Compensation Court Act

1984 that provided for the appointment as medical referees of persons

nominated by employer and employee organisations.

Schedule 2.2 amends the Construction Safety Act 1912 to broaden existing

provisions that allow the refusal or suspension of a powderman's certificate

of competency on the ground that the holder is the subject of an apprehended

violence order, so that such a certificate will be able to be refused or

suspended on the ground that the person has a history of violence or threats

of violence (including stalking and intimidation). The power to suspend on

that ground will only be able to be used when the person has been called

upon to show cause why the certificate should not be suspended or cancelled

(which carries with it mechanisms for the person to be heard by the Authority

and to appeal if dissatisfied with the decision). Further amendments are made

to provide that an application for a powderman's certificate can be refused on

those grounds also.

Explanatory note page 13

Schedule 2.3 amends the Dangerous Goods Act 1975 to insert a new

provision that authorises the WorkCover Authority to cancel or refuse to

issue certain explosives licences and permits under the Act on the ground that

the person cannot be trusted to deal with explosives because the person has a

history of violence or threats of violence (including stalking and

intimidation). The provision for cancellation requires the person to be given

an opportunity to make submissions on the matter and WorkCover is

authorised to suspend the licence or permit pending the making of

submissions and the determination of the matter. The provision also

authorises the refusal or suspension of an explosives licence or permit while a

person is the subject of an apprehended violence order. The provision

parallels an existing provision in the Construction Safety Act 1912 that

confers similar powers of suspension and cancellation in respect of

powdermen's certificates of competency (which is also being amended by

this Bill to allow suspension and cancellation on the grounds of a person's

violence). history of violence or threats of

Schedule 2.4 amends the Industrial Relations Act 1996 to provide a right of

appeal to a Full Bench of the Industrial Relations Commission against a

decision by a judicial member of that Commission or an Industrial or other

Magistrate to acquit a person for an alleged offence against the Occupational

Health and Safety Act 1983 or certain associated occupational health and

safety legislation. Any such appeal:

(a) may be made by the Attorney General, Minister for Industrial

Relations, DPP or the prosecutor, and

(b) must

appealed

be made within 21 days after the date of the decision

against

that

or, with the leave of the Full Bench, within 3 months of

and

decision,

(c) and

is not to be by way of a new hearing,

(d) may be made if proceedings for the offence

were originally instituted

by an inspector under that legislation or with the consent of the

Minister or other authorised officer (but may not be made if the

proceedings were instituted by the secretary of an industrial

organisation without any such consent).

The amendment overcomes the decision of the Court of Criminal Appeal in

CI &D Manufacturing Pty Ltd & Ors v The Registrar Industrial Court of New

South Wales & Ors given on 16 August 1996, which held that the common

law rule against double jeopardy was not abrogated by rights of appeal,

expressed in general terms, under the now repealed Industrial Relations Act

1991. The decision in that case applies to appeals under the Industrial

Relations Act 1996.

Explanatory note page 14

Schedule 2.5 amends the Occupational Health and Safety Act 1983 as

follows:

Amendment [l] changes a provision that prohibits plant and areas of

premises involved in dangerous occurrences from being used, moved,

interfered with or disturbed. The prohibition currently applies until

midnight on the following working day. The amendment changes this

to midnight on the next day (whether or not the next day is a working

day).

Amendments [2]-[4] insert special provisions that will authorise

occupational health and safety inspectors to require a person who is

believed to have information, documents or evidence about a possible

contravention of the relevant legislation to give the information,

documents or evidence to the inspector. The provisions contain

protections against self incrimination.

Amendments [5] and [6] change the provision that provides for an

automatic stay of a prohibition notice (a notice prohibiting certain

workplace activities that carry an immediate risk to health or safety)

when a review of the notice is applied for. The amendment removes

the automatic stay and replaces it with a right to apply to a Local Court

constituted by an Industrial Magistrate for an order staying the

prohibition notice. A court ordered stay cannot extend past the time

when notice of the result of the review of the prohibition notice is

given to the applicant by the WorkCover Authority.

Schedule 2.6 amends the WorkCover Legislation Amendment Act 1995 as

follows:

Amendment [l] repeals an uncommenced amendment to the Workers

Compensation Act 1987 that would operate to impose a 3 year limit on

weekly payments of compensation under that Act for psychological

(stress) injuries.

Amendment [2] repeals uncommenced amendments to the Workers

Compensation Act 1987 that would operate to entitle a party to a

dispute to be represented by a barrister or solicitor at a conciliation

conference.

Amendments [3] and [4] repeal uncommenced amendments to the

Compensation Court Act 1984 that provided for the nomination of

medical practitioners by employer and employee organisations and the

Department of Health for appointment as medical referees, and equal

representation on medical panels by employer and employee nominees.

A further amendment is made to the Act in this Schedule to require the

Chief Judge of the Compensation Court to consult with employer and

employee organisations on proposed appointments of medical referees.

Explanatory note page 15

Schedule 2.7 amends the WorkCover Administration Act 1989 to provide for

payment out of the WorkCover Authority Fund of the costs incurred by the

Department of Industrial Relations in relation to workers compensation

conciliation officers who are officers of that Department and to transfer to

that Act a provision currently in the Workers Compensation Act 1987 that

provides for payment out of the WorkCover Authority Fund of the

remuneration of conciliation officers who are appointed by the Governor.

Schedule 2.8 amends the Workers Compensation (Bush Fire, Emergency and

Rescue Services) Act 1987 to provide for the payment of compensation to an

emergency service worker or rescue association worker in the following

circumstances:

(a) destruction, damage or loss of personal effects on the worker while

carrying out an authorised activity,

(b) destruction, damage or loss of any vehicle, equipment or thing used in

connection with the carrying out of an authorised activity at or near the

scene of the authorised activity and owned by or in the possession or

custody of the worker,

(c) destruction, damage or loss of any vehicle used to transport the worker

to or from the scene of an authorised activity and owned by or in the

possession or custody of the worker.

The Act already provides for this kind of compensation to be payable to

bushfire fighters and the new provisions generally follow the provisions for

fire fighters.

The Act also already provides for the payment of compensation to emergency

service workers and rescue association workers for damage to crutches,

artificial aids, spectacles and clothing.

The Act is also amended to prevent a motor vehicle insurer from increasing

an insurance premium because a vehicle was damaged in circumstances in

which compensation is payable. This provision parallels an equivalent

provision applicable to bushfire fighters.

Schedule 2.9 amends the Workers' Compensation (Bust Diseases) Act 1942

to close the Dust Diseases Reserve Fund under that Act. The balance in that

Fund and its role as the collection fund for contributions by insurers to the

liabilities that arise under that Act will be transferred to the existing Workers'

Compensation (Dust Diseases) Fund under that Act.

Explanatory note page 16