WORKERS REHABILITATION AND COMPENSATION ACT 1986 - SECT 3

This legislation has been repealed.

WORKERS REHABILITATION AND COMPENSATION ACT 1986 - SECT 3

3—Interpretation

        (1)         In this Act, unless the contrary intention appears—

"actuary" means a Fellow or Accredited Member of the Institute of Actuaries of Australia;

"Advisory Committee" means the Workers Rehabilitation and Compensation Advisory Committee established under Part 2

;

"apprentice" includes—

            (a)         a person undertaking training as a trainee in a trade, declared vocation or other occupation under a contract of training under the Training and Skills Development Act 2003

;

            (b)         a person undertaking training in a scheme approved by the Corporation for the purposes of this definition,

and "apprenticeship" has a corresponding meaning;

"authorised officer" means a person who is authorised by the Corporation to exercise the powers of an authorised officer under this Act;

"average minimum award rate" means the amount published by the Commonwealth Statistician as the weighted average minimum weekly award rate for adult persons (wage and salary earners) in South Australia;

"average weekly earnings", in relation to a worker, means the worker's average weekly earnings determined in accordance with section 4

;

"the board" means the board of management of the Corporation;

"business day" means any day except Saturday, Sunday or a public holiday;

"child", in relation to a deceased worker, includes a person in relation to whom the worker stood, at the date of death, in loco parentis ;

"close personal relationship" means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—

            (a)         the relationship between a legally married couple; or

            (b)         a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;

Note—

Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.

"compensable injury" means an injury that is compensable by virtue of section 30

;

"compensation" includes any monetary benefit payable under this Act;

"conciliation officer"—see section 81

;

"conciliator" means a presidential member of the Tribunal or a conciliation officer assigned to preside at conciliation proceedings—see section 92(1)(a)

;

"Consumer Price Index" means the Consumer Price Index (All groups index for Adelaide) published by the Australian Bureau of Statistics;

"contract of service" means—

            (a)         a contract under which one person (the worker) is employed by another (the employer);

            (b)         a contract, arrangement or understanding under which one person (the worker) works for another in prescribed work or work of a prescribed class;

            (c)         a contract of apprenticeship;

            (d)         a contract, arrangement or understanding under which a person (the worker)—

                  (i)         receives on-the-job training in a trade or vocation from another (the employer); and

                  (ii)         is during the period of that training remunerated by the employer;

"Corporation" means the WorkCover Corporation of South Australia ;

"corresponding law" means a law—

            (a)         of the Commonwealth; or

            (b)         of a State (other than this State) or a Territory of the Commonwealth; or

            (c)         of another country,

that provides for compensation for injuries arising from employment;

"current work capacity", in relation to a worker, means a present inability arising from a compensable injury such that the worker is not able to return to his or her employment at the time of the occurrence of the injury but is able to return to work in suitable employment;

"dependant", in relation to a deceased worker, means a relative of the worker who, at the time of the worker's death—

            (a)         was wholly or partially dependent for the ordinary necessities of life on earnings of the worker; or

            (b)         would, but for the worker's injury, have been so dependent,

and includes a posthumous child of the worker; and "dependent" has a corresponding meaning;

"disease" includes—

            (a)         any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development; and

            (b)         any injury to which section 31

applies;

"domestic partner"—a person is the domestic partner of a worker if he or she lives with the worker in a close personal relationship and—

            (a)         the person—

                  (i)         has been so living with the worker continuously for the preceding period of 3 years; or

                  (ii)         has during the preceding period of 4 years so lived with the worker for periods aggregating not less than 3 years; or

                  (iii)         has been living with the worker for a substantial part of a period referred to in subparagraph (i)

or (ii)

and the Corporation considers that it is fair and reasonable that the person be regarded as the domestic partner of the worker for the purposes of this Act; or

            (b)         a child, of whom the worker and the person are the parents, has been born (whether or not the child is still living);

"educational institution" means—

            (a)         a secondary school; or

            (b)         a trade or technical school; or

            (c)         a college of advanced education, university or other institution at which tertiary education is provided; or

            (d)         any other educational or training institution approved by the Corporation for the purposes of this definition;

"employer" means—

            (a)         a person by whom a worker is employed under a contract of service, or for whom work is done by a worker under a contract of service (subject to any exclusion under subsection (9)

);

            (b)         in relation to persons of whom the Crown is, under section 103A

, the presumptive employer—the Crown;

            (c)         in relation to persons of whom any other person is, by virtue of a provision of this Act, the presumptive employer—that other person,

and includes a former employer and the legal personal representative of a deceased employer;

"employment" includes—

            (a)         work done under a contract of service;

            (b)         the work of a self-employed person to whom the Corporation has extended the protection of this Act;

            (c)         the work of persons of whom the Crown is, under section 103A

, the presumptive employer;

            (d)         attendance by a worker at a place of pick-up;

"evidentiary material" means any document, object or substance of evidentiary value in proceedings before the Tribunal and includes any document, object or substance that should, in the opinion of the Tribunal, be produced for the purpose of enabling the Tribunal to determine whether or not it has evidentiary value;

"foreign law" means any law except a law of this State;

"industrial association" means—

            (a)         an association registered under the Fair Work Act 1994

; or

            (b)         an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or

            (c)         the United Trades and Labor Council; or

            (d)         the Australian Mines and Metals Association; or

            (e)         Self Insurers of South Australia Inc; or

            (ea)         South Australian Employers' Chamber of Commerce and Industry Inc (trading as Business SA); or

            (f)         an association, society or body formed to represent, protect or further the interests of employers or employees;

"the Industrial Court" means the Industrial Court of South Australia;

"industry" includes any business or activity in which workers are employed;

"injured worker"—an injured worker is any worker who has suffered an injury (or, where the context admits, has died);

"injury", in relation to a worker, means—

            (a)         any physical or mental injury including—

                  (i)         loss, deterioration or impairment of a limb, organ or part of the body, or of a physical, mental or sensory faculty; or

                  (ii)         a disease; or

                  (iii)         disfigurement; or

            (b)         where the context admits—the death of the worker,

and includes a secondary injury;

"legal personal representative"—see subsection (11)

;

"local government corporation" means—

            (a)         a council under the Local Government Act 1999

; or

            (b)         the Local Government Association of South Australia; or

            (c)         any other body—

                  (i)         established for local government purposes; and

                  (ii)         prescribed for the purposes of this definition;

"medical expert" means—

            (a)         a legally qualified medical practitioner;

            (b)         a registered dentist;

            (c)         a registered psychologist;

            (d)         a registered optician;

            (e)         a registered physiotherapist;

            (f)         a registered chiropractor;

            (g)         a registered podiatrist;

            (h)         a registered occupational therapist;

                  (i)         a registered speech pathologist;

            (j)         a registered osteopath;

"medical services" means—

            (a)         attendance, examination or treatment by a medical expert (including the obtaining from a medical expert of a certificate or report); or

            (b)         any diagnostic examination or test required for the purposes of treatment by a medical expert;

"no current work capacity", in relation to a worker, means a present inability arising from a compensable injury such that a worker is not able to return to work, either in his or her employment at the time of the occurrence of the injury or in suitable employment;

"non-economic loss" means—

            (a)         pain and suffering;

            (b)         loss of amenities of life;

            (c)         loss of expectation of life;

            (d)         any other loss or detriment of a non-economic nature;

"notional weekly earnings" in relation to a worker means—

            (a)         the worker's average weekly earnings; or

            (b)         where an adjustment has been made under this Act to take account of changes in levels of earnings, the value of money or remuneration (including under section 37

) or other relevant factors (or 1 or more of these)—the worker's average weekly earnings as so adjusted;

"officer" of the Corporation includes an employee of the Corporation;

"orphan child" means a child whose natural or a adoptive parents are dead and includes a child, one of whose natural or adoptive parents is dead and who has no reasonable prospect of being supported by the surviving natural or adoptive parent;

"parent", in relation to a deceased worker, includes a person who stood in loco parentis to the worker at the time of the worker's death;

"place of employment" means a place where a worker is required to carry out duties of employment and, if the place is a building, includes land within the external boundaries of the land on which the building is situated;

"premises" means—

            (a)         a building, structure or place (including an aircraft, ship or vehicle); or

            (b)         a part of premises;

"prescribed allowance", in relation to the earnings of a worker, means any amount received by the worker from an employer by way of an allowance or benefit prescribed for the purposes of this definition;

"presidential member" of the Tribunal means the President or a Deputy President of the Tribunal;

"recognised medical expert" means—

            (a)         a legally qualified medical practitioner; or

            (b)         in relation to injuries of a particular kind—a medical expert who is recognised by the Corporation as having specialised knowledge of, and experience in the treatment of, injuries of that kind;

"relative", in relation to a deceased worker, means a spouse, domestic partner, parent, grandparent, step-parent, child, grandchild, stepchild, brother, sister, stepbrother, stepsister, half-brother or half-sister of the worker;

"the repealed Act" means the Workers Compensation Act 1971

repealed by this Act;

"residence" in relation to a worker includes a place—

            (a)         at which the worker resides in pursuance of the terms of the worker's employment or at the request of the employer; or

            (b)         at which it is necessary or convenient for the worker to reside temporarily for the purposes of employment;

"review authority" means—

            (a)         a person or body conducting a review under section 72M

; or

            (b)         the Tribunal;

"reviewable decision"—see section 89A

;

"secondary injury" means an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury;

"self-employed worker" means a person to whom the Corporation has extended the protection of this Act pursuant to section 103

;

"self-insured employer" means an employer who is registered by the Corporation as a self-insured employer under Part 5 Division 1

;

"ship" includes a boat, vessel or craft;

"South Australian ship" means a ship—

            (a)         that is registered in the State; or

            (b)         that is owned or under charter by the Crown; or

            (c)         that is owned or under charter by a body corporate or other person—

                  (i)         whose principal office or place of business is in the State; or

                  (ii)         whose principal office or place of business with respect to the control or management of the ship is in the State;

"spouse"—a person is the spouse of another if they are legally married;

"the State" includes the territorial waters of the State;

"suitable employment", in relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:

            (a)         the nature of the worker's incapacity and previous employment;

            (b)         the worker's age, education, skills and work experience;

            (c)         the worker's place of residence;

            (d)         medical information relating to the worker that is reasonably available, including in any medical certificate or report;

            (e)         if any rehabilitation programs are being provided to or for the worker;

            (f)         the worker's rehabilitation and return to work plan, if any;

"therapeutic appliance" means—

            (a)         spectacles or contact lenses; or

            (b)         a hearing aid; or

            (c)         false teeth; or

            (d)         a prosthesis; or

            (e)         a crutch or wheelchair; or

            (f)         any other appliance or aid for reducing the extent of an injury or enabling a person to overcome in whole or part the effects of an injury;

"trauma" means an event, or series of events, out of which a compensable injury arises;

"Tribunal" means the Workers Compensation Tribunal ;

"unrepresentative injury" means an injury arising from an attendance mentioned in section 30(3)

or a journey mentioned in section 30(5)(b)

;

"WorkCover premium order" means a WorkCover premium order under section 71

;

"WorkCover premium provisions"—see section 66(1)

;

"worker" means—

            (a)         a person by whom work is done under a contract of service (whether or not as an employee);

            (b)         a person who is a worker by virtue of section 103A

;

            (c)         a self-employed worker,

and includes a former worker and the legal personal representative of a deceased worker;

"working day" in relation to a worker means a day on which the worker works or would, if not incapacitated for work, be normally required to work in the course of employment.

        (3)         A member of the crew of a fishing boat who is remunerated by a share in profits or gross receipts obtained by working the boat is not a worker for the purposes of this Act.

        (5)         Where a worker has no fixed place of employment, the worker's place of employment on a particular working day is the place at which, or the area in which, the worker works or is required to work on that working day.

        (6)         Where in a prescribed industry or in prescribed circumstances a person (the "principal") contracts with another person (the "contractor") for the performance by the contractor of work undertaken by the principal, the principal shall, for the purposes of this Act, be deemed to be the employer of workers employed by the contractor.

        (7)         The regulations may exclude (either absolutely or subject to limitations or conditions stated in the regulations) specified classes of workers wholly or partially from the application of this Act.

        (8)         A regulation under subsection (7)

may only be made after consultation with the Advisory Committee.

        (9)         The regulations may, in prescribing work or work of a specified class for the purposes of paragraph (b)

of the definition of "contract of service" in subsection (1)

—

            (a)         designate a person, or persons of a specified class, as the presumptive employer of a worker who is within the ambit of the relevant prescription;

            (b)         exclude a person who would otherwise be the employer of such a worker from the definition of "employer" in subsection (1)

.

        (10)         For the purposes of this Act—

            (a)         "total incapacity" for work is the incapacity for work that is represented by a worker having no current work capacity within the meaning of this Act; and

            (b)         "partial incapacity" for work is the incapacity for work that is represented by a worker having a current work capacity within the meaning of this Act.

        (11)         For the purposes of this Act, a person is the legal personal representative of a deceased worker if the person is—

            (a)         a person who is entitled at law to administer the estate of the deceased worker; or

            (b)         a person who is authorised by the Tribunal (on application made under this subsection) to act under this Act as a legal personal representative of the deceased worker.

        (11a)         For the purposes of this Act, 2 or more workplaces in close proximity may, if the Corporation so determines, be regarded as a single workplace.

        (12)         A reference in this Act to suitable employment provided or offered by a worker's employer includes—

            (a)         employment in respect of which—

                  (i)         the number of hours each day or week that the worker performs work; or

                  (ii)         the range of duties the worker performs,

is suitably increased in stages (in accordance with a rehabilitation and return to work plan or otherwise); and

            (b)         if the employer does not provide employment involving the performance of work duties—suitable training or vocational re-education provided—

                  (i)         by the employer at the workplace or elsewhere; or

                  (ii)         by any other person or body under arrangements approved by the employer,

but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the suitable training or vocational re-education.

        (13)         A reference in a provision of this Act to a designated form is a reference to a form designated for the purposes of that provision by the Corporation from time to time by notice in the Gazette (and for the purposes of this Act the Corporation may specify information that may be provided in a specified form, not being in the nature of a written or printed form, which will satisfy a requirement as to the provision of information in a designated form).

        (14)         A reference in a provision of this Act to a designated manner is a reference to a manner designated for the purposes of that provision by the Corporation from time to time by notice in the Gazette.

        (15)         If a monetary sum is followed by the word ("indexed"), the amount is to be adjusted on 1 January of each year by multiplying the stated amount by a proportion obtained by dividing the Consumer Price Index for the September quarter of the immediately preceding year by the Consumer Price Index for the September quarter, 2007 (with the amount so adjusted being rounded up in accordance with the regulations).