New South Wales Consolidated Acts

WORKERS COMPENSATION ACT 1987 - SECT 208AA

208AA Contributions by exiting employers

(1) In this section:
"exiting employer" means an employer who on or after 1 July 1998 became or becomes:

(a) a self-insurer under this Act or the 1998 Act, or

(b) insured for the purposes of this Act by a specialised insurer under this Act or the 1998 Act, or

(c) licensed under Part VIIIB of the Safety, Rehabilitation and Compensation Act 1988 of the Commonwealth (pursuant to a declaration of eligibility under that Part made on the basis that the employer is a corporation carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority).

"insured liabilities" of an exiting employer means the following outstanding liabilities of the exiting employer:

(a) any liabilities of the exiting employer under this Act in respect of workers employed by the exiting employer while insured under a policy of insurance issued by an insurer licensed or previously licensed under Division 3 of Part 7 (other than a specialised insurer),

(b) any liabilities of the exiting employer independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State or Territory or the Commonwealth or a liability arising under the law of another country) for injuries received by workers employed by the person while insured under a policy of insurance referred to in paragraph (a).

"responsible insurer" for an exiting employer means:

(a) the exiting employer, except in a case in which paragraph (b) or (c) applies, or

(b) in the case of an exiting employer that is covered by a licence under section 211A-the exiting employer and the licence holder (jointly and severally), or

(c) in the case of an exiting employer that is insured by a specialised insurer-the specialised insurer that insures the exiting employer.

(2) The object of this section is to provide for the protection of the Insurance Fund against deficiencies that may result from the insured liabilities of exiting employers.

(3) The Authority may by order published in the Gazette require the responsible insurer for an exiting employer to pay contributions for the purposes of this section. The order is to provide for the amount of the required contributions or for the manner in which they are to be calculated and may require different contributions to be paid by different responsible insurers or in respect of different exiting employers.

(4) The following provisions apply in respect of the contributions required to be paid by such an order:

(a) the responsible insurer for an exiting employer must pay the required contributions to the Authority for payment into the Insurance Fund,

(b) the required contributions must be paid at such times and in such manner as the order requires,

(c) if the responsible insurer has not paid a contribution within the required time, the amount of the contribution together with a late payment fee calculated at the rate of 15% of that amount per annum compounded quarterly (or, where another rate is prescribed, that other rate) may be recovered by the Authority as a debt in any court of competent jurisdiction,

(d) a certificate executed by the Authority certifying that an amount specified in the certificate is the amount recoverable by the Authority under paragraph (c) is (without proof of its execution by the Authority) admissible in any proceedings for the purposes of this section and is evidence of the matters specified in the certificate.

(5) The Authority may for the purposes of this section enter into an agreement with the responsible insurer for an exiting employer under which the responsible insurer agrees to assume the exiting employer’s insured liabilities.

(6) When the Authority enters into such an agreement the following provisions have effect (whether or not there is any breach of the agreement):

(a) the responsible insurer is not liable to pay any contribution that would otherwise be payable by the responsible insurer under this section,

(b) a licensed insurer is not liable under any policy of insurance (despite the terms of the policy) in respect of any liability that the responsible insurer has agreed to assume under the agreement with the Authority,

(c) a licensed insurer who would otherwise be liable under a policy of insurance in respect of any such liability must comply with any direction of the Authority to provide information to the responsible insurer with respect to such a liability and any related claim,

(d) a licensed insurer must pay to the responsible insurer such amount as the Authority determines to be fair and reasonable,

(e) the Authority may from time to time direct that the provisions of the agreement (and the provisions of this section) do not apply in respect of a specified claim or class of claims,

(f) an exiting employer who is a self-insurer is taken to be a self-insurer in respect of any liability that the exiting employer has (as responsible insurer) agreed to assume under the agreement with the Authority.

(7) It is a condition of the licence of a licensed insurer that the licensed insurer must comply with any direction of the Authority under this section.